Section 1.01 Defined Terms . As used in this Agreement, the following terms have the meanings specified below:
“ABR” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.
“Act” has the meaning assigned to such term in Section 9.14.
“Administrative Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
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“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 9.01, or such other address or account as the Administrative Agent may from time to time notify to the Borrower and the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“Agent Parties” has the meaning assigned to such term in Section 9.01(c).
“Aggregate Exposure” means, with respect to any Lender at any time, the amount of such Lender’s Revolving Commitment then in effect or, if such Revolving Commitment has been terminated, such Lender’s Outstanding Revolving Credit.
“Agreement ” has the meaning assigned to such term in the preamble to this Credit Agreement.
“Alternate Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1% (b) the rate of interest in effect for such day as publicly announced from time to time by the Administrative Agent as its “prime rate” and (c) the Eurodollar Rate plus 1.00%, subject to the interest rate floors set forth in the definition thereof; provided that if the Alternate Base Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. The “prime rate” is a rate set by the Administrative Agent based upon various factors including the Administrative Agent’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such prime rate announced by the Administrative Agent shall take effect at the opening of business on the day specified in the public announcement of such change. If the Alternate Base Rate is being used as an alternate rate of interest pursuant to Section 2.11 hereof, then the Alternate Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.
“Applicable Percentage” means, with respect to any Lender at any time, the percentage of the Aggregate Exposure of all Lenders represented by the Aggregate Exposure of such Lender (or, if the Commitments have terminated in full and the Outstanding Revolving Credit has been reduced to zero, such percentage immediately prior to such termination, repayment and reduction).
“Applicable Rate” means a rate per annum equal to (a) 6.75% for Eurodollar Loans and (b) 5.75% for ABR Loans.
“Approved Fund” means any Person that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Asset Sale” means any sale, issuance, conveyance, transfer, lease, assignment or other disposition by the Borrower or any Subsidiary to any Person other than the Borrower or any Subsidiary (includ-
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ing by means of a sale and leaseback transaction or a merger or consolidation) (collectively, for purposes of this definition, a “transfer”), in one transaction or a series of related transactions, of any assets of the Borrower or any of its Subsidiaries other than dispositions of inventory in the ordinary course of business. For purposes of this definition, the term “Asset Sale” shall not include:
(1) transfers of cash and dispositions of Cash Equivalents for fair market value;
(2) transfers of assets (including Equity Interests) that are governed by, and made in accordance with, Section 6.03 (other than clause (c) thereof);
(3) Restricted Payments not prohibited by Section 6.05 and Investments not prohibited by Section 6.11;
(4) the creation of any Lien permitted by Section 6.02;
(5) transfers of assets that are (i) damaged, worn out or obsolete or (ii) replaced by or exchanged for assets of similar suitability and value;
(6) dispositions of property by any subsidiary to the Borrower or to a wholly owned subsidiary; provided that if the transferor of such property is a Subsidiary Guarantor, the transferee thereof must either be the Borrower or a Subsidiary Guarantor;
(7) Involuntary Dispositions;
(8) [reserved];
(9) licenses, sublicenses, leases or subleases granted to others in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any Subsidiary; and
(10) any transfer or series of related transfers that, but for this clause, would be Asset Sales, if the aggregate Fair Market Value of the assets transferred in such transaction or any such series of related transactions does not exceed $1,000,000.
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.05), and accepted by the Administrative Agent, in the form of Exhibit A or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.
“Auto-Extension Letter of Credit” has the meaning assigned to such term in Section 2.17(b).
“Available Revolving Commitment” means, as to any Revolving Lender at any time, an amount equal to the excess, if any, of (a) such Lender’s Revolving Commitment then in effect at such time over (b) the sum of such Lender’s Revolving Loans and LC Exposure at such time.
“Avoidance Actions” means actions for preferences, fraudulent conveyances and other avoidance power claims under Sections 544, 545, 547, 548, 549, 550 and 553 of the Bankruptcy Code.
“Backstop Fee” has the meaning specified in Section 2.09(c).
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
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“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, rule, regulation or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bank of America” means Bank of America, N.A. and its successors.
“Bank of America Corporate Card Service Agreement” means that certain Corporate Card Service Agreement dated as of October 1, 2016 by and between LSC Communications US, LLC and Bank of America, N.A., as the same may be amended, supplemented and otherwise modified from time to time.
“Bankruptcy Code” has the meaning specified in the recitals hereto.
“Bankruptcy Court” has the meaning specified in the recitals hereto.
“Basel III” means, collectively, those certain agreements on capital requirements, leverage ratios and liquidity standards contained in “Basel III: A Global Regulatory Framework for More Resilient Banks and Banking Systems,” “Basel III: International Framework for Liquidity Risk Measurement, Standards and Monitoring,” and “Guidance for National Authorities Operating the Countercyclical Capital Buffer,” each as published by the Basel Committee on Banking Supervision in December 2010 (as revised from time to time), and as implemented by a Lender’s primary U.S. federal banking regulatory authority or primary non-U.S. financial regulatory authority, as applicable.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“Board” means the Board of Governors of the Federal Reserve System of the United States of America.
“Board of Directors” means the Board of Directors of the Borrower or any committee thereof duly authorized to act on behalf of such Board of Directors.
“Borrower” has the meaning assigned to such term in the preamble to this Agreement.
“Borrower Materials” has the meaning assigned to such term in Section 9.17.
“Borrowing” means a Revolving Loan of the same Type, made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.
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“Borrowing Date” means any Business Day specified by the Borrower as a date on which the Borrower requests the relevant Lenders to make Loans hereunder.
“Budget” means (a) the Initial Budget or (b) the most recent Updated Budget, if any.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that when used in connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in Dollar deposits in the London interbank market.
“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP, in each case, as in effect prior to giving effect to the adoption of ASU No. 2016-02 “Leases (Topic 842)” and ASU No. 2018-11 “Leases (Topic 842)”.
“Carve-Out” has the meaning given to such term in the Interim DIP Order and, as applicable, the Final DIP Order.
“Cash Equivalents” means (1) marketable direct obligations issued by, or unconditionally guaranteed by, the United States government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition; (2) certificates of deposit, time deposits, eurodollar time deposits or overnight bank deposits having maturities of one year or less from the date of acquisition issued by any commercial bank organized under the laws of the United States or any state thereof; (3) commercial paper of an issuer rated at least A-1 by Standard & Poor’s or P-1 by Moody’s, or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings of commercial paper issuers generally, and maturing within one year from the date of acquisition; (4) repurchase obligations of any commercial bank satisfying the requirements of clause (2) of this definition with respect to securities issued or fully guaranteed or insured by the United States government; (5) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by Standard & Poor’s or A by Moody’s; (6) securities with maturities of one year or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the requirements of clause (2) of this definition; (7) money market mutual or similar funds that invest exclusively in assets satisfying the requirements of clauses (1) through (6) of this definition; (8) money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as amended, (ii) are rated AAA by Standard & Poor’s or Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000; and (9) in the case of any Foreign Subsidiary, investments substantially comparable to any of the foregoing investments with respect to the country in which such Foreign Subsidiary is organized.
“Cash Management Agreement” means any agreement entered into from time to time by the Borrower or any Subsidiary Guarantor with a Cash Management Bank in connection with cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements, including the Bank of America Corporate Card Service Agreement.
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“Cash Management Bank” means any Person that (i) at the time it enters into a Cash Management Agreement or provides any cash management services, is a Lender or the Administrative Agent or an Affiliate of a Lender or the Administrative Agent or (ii) in the case of any Cash Management Agreement in effect on or prior to the Closing Date, is, as of the Closing Date, a Lender or the Administrative Agent or an Affiliate of a Lender or the Administrative Agent and a party to a Cash Management Agreement.
“Cash Management Obligations” means obligations arising on or after the Petition Date owed by the Borrower or any Subsidiary Guarantor to any Cash Management Bank under any Cash Management Agreement; provided that obligations consisting of principal (but not, for the avoidance of doubt, interest, fees, expenses and indemnitees) owed by the Borrower or any Subsidiary Guarantor to Bank of America pursuant to the Bank of America Corporate Card Service Agreement in an aggregate amount in excess of $8,000,000 shall not constitute “Cash Management Obligations”.
“Cash Management Order” means, collectively, the orders entered by the Bankruptcy Court with respect to the Loan Parties in the Chapter 11 Case authorizing and approving the Loan Parties’ cash management arrangements and procedures, and which orders shall be in form and substance reasonably satisfactory to the Administrative Agent.
“CFC” means a “controlled foreign corporation” within the meaning of Section 957 of the Code.
“Change in Law” means (a) the adoption of any law, rule, regulation or treaty after the Closing Date, (b) any change in any law, rule, regulation or treaty or in the interpretation or application thereof by any Governmental Authority after the Closing Date or (c) compliance by any Lender (or, for purposes of Section 2.12(b), by any lending office of such Lender or by such Lender’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the Closing Date; provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives (including the rules for systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text” published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated) promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law,” regardless of the date created, adopted or issued, but only to the extent it is the general policy of a Lender to impose applicable increased costs or costs in connection with capital adequacy and liquidity requirements similar to those described in clauses (a) and (b) of Section 2.12 generally on other similarly situated borrowers under similar circumstances under agreements permitting such impositions; provided that such Lender shall only be required to certify compliance with such requirement and shall not be obliged to provide any other information.
“Change of Control” means any of the following events:
(a) the sale, lease or transfer, in one or a series of related transactions, of all or substantially all of the assets of the Borrower and its subsidiaries, taken as a whole, to any Person;
(b) any person or group (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the beneficial owner (as such term is defined in Rules 13d-3 and 13d-5 under the Exchange Act) of more than 35% of the aggregate voting power of all outstanding classes or series of the Borrower’s Voting Stock;
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(c) [reserved]; or
(d) a “change of control triggering event” (or similar event) shall occur in any document pertaining to Material Indebtedness.
For purposes of this definition, a Person shall not be deemed to have beneficial ownership of securities subject to a stock purchase agreement, merger agreement or similar agreement until the consummation of the transactions contemplated by such agreement.
“Chapter 11 Case” has the meaning specified in the recitals hereto.
“Closing Date” means the date on which the conditions precedent set forth in Section 4.01 shall have been satisfied (or waived in accordance with Section 9.02).
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Collateral” means, collectively, all presently owned and hereafter acquired tangible and intangible property and assets of the Borrower, the Subsidiary Guarantors and their respective estates wherever located, and any proceeds and products thereof, upon which a Lien is purported to be created by any Collateral Document or the Orders; provided that “Collateral” shall not include any Excluded Property.
“Collateral Documents” means the Security Agreement and each other security document, Mortgage, pledge agreement or collateral agreement executed and delivered in connection with this Agreement and/or the other Loan Documents to grant a security interest in any property as collateral to secure the Obligations.
“Commitment” means, with respect to each Lender (to the extent applicable), such Lender’s Revolving Commitment.
“Committed Loan Notice” means a notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the other, or (c) a continuation of Eurodollar Loans, pursuant to Section 2.05(a), which shall be substantially in the form of Exhibit K or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Compliance Date” means the date as of which all of the following shall have occurred:
(a) the Final DIP Order Entry Date shall have occurred;
(b) no Default or Event of Default shall have occurred and be continuing; and
(c) the Borrower shall either:
(i) have entered into a restructuring support agreement for a Conforming Plan of Reorganization that satisfies the requirements set forth in Section 5.15(a) and otherwise be in compliance with all then-applicable requirements of Section 5.15(a), or
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(ii) have delivered to the Lenders one or more indications of interest in respect of a Sale Transaction that satisfies the requirements for any such indication set forth in Section 5.15(b) and otherwise be in compliance with all then-applicable requirements of Section 5.15(b).
“Conforming Asset Sale” has the meaning specified in Section 5.15(b).
“Conforming Plan of Reorganization” has the meaning specified in Section 5.15(a).
“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Covered Party” has the meaning specified in Section 9.21(a).
“Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.
“Default” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
“Defaulting Lender” means, subject to the last paragraph of Section 2.18, any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the Issuing Bank or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) within two Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent or the Issuing Bank in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, other than via an Undisclosed Administration, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in
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that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to the last paragraph of Section 2.18) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrower, the Issuing Bank and each other Lender promptly following such determination.“Designated Jurisdiction” means any country or territory to the extent that such country or territory itself is the subject of any Sanction.
“Designated Real Property” means any of the Real Properties listed on Schedule 2.08.
“Designated Real Property Retained Proceeds” means, with respect to the Disposition of a single Designated Real Property, an amount equal to the lesser of (a) $5,000,000 and (b) fifty percent (50%) of the Net Proceeds from such Disposition; provided that the aggregate amount of Net Proceeds constituting “Designated Real Property Retained Proceeds” from all Dispositions of Designated Real Properties shall not exceed the lesser of (x) fifty percent (50%) of such Net Proceeds and (y) $15,000,000, and any excess of such Net Proceeds above such amount shall not constitute “Designated Real Property Retained Proceeds”.
“Designated Real Property Prepayment Proceeds” means, with respect to the Disposition of a single Designated Real Property, the Net Proceeds from such Disposition minus the Designated Real Property Retained Proceeds with respect to such Disposition.
“DIP Facility” has the meaning specified in the recitals hereto.
“Disposition” means, with respect to any property, any sale, lease, license, sale and leaseback, assignment, conveyance, transfer or other disposition thereof. The terms “Dispose” and “Disposed of” shall have correlative meanings.
“Dollars” or “$” refers to lawful money of the United States of America.
“Domestic Subsidiary” means any Subsidiary of the Borrower that is not a Foreign Subsidiary.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
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“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Environmental Law” means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, release or threatened release of any Hazardous Material.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Interests” means, of any Person, (1) any and all shares or other equity interests (including common stock, preferred stock, limited liability company interests and partnership interests) in such Person and (2) all rights to purchase, warrants or options (whether or not currently exercisable), participations or other equivalents of or interests in (however designated) such shares or other interests in such Person, but excluding any debt securities convertible into such shares or other interests.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
“ERISA Event” means (a) any “reportable event” (as defined in Section 4043(c) of ERISA or the regulations issued thereunder) with respect to a Plan other than an event for which the 30-day notice period is waived; (b) any failure by any Plan to satisfy the minimum funding standards (within the meaning of Sections 412 or 430 of the Code or Section 302 of ERISA) applicable to such Plan, whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Plan or the failure by the Borrower or any of its ERISA Affiliates to make any required contribution to a Multiemployer Plan; (e) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan, including but not limited to the imposition of any Lien in favor of the PBGC or any Plan; (f) a determination that any Plan is, or is expected to be, in “at risk” status (within the meaning of Section 430 of the Code or Title IV of ERISA); (g) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or to appoint a trustee to administer any Plan; (h) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan (or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA) or Multiemployer Plan; or (i) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, Insol-
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vent or in endangered or critical status, within the meaning of Section 432 of the Code or Section 305 of ERISA.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Eurodollar” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Eurodollar Rate.
“Eurodollar Rate” means:
(a) for any Interest Period with respect to a Eurodollar Loan, the rate per annum equal to the London Interbank Offered Rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for Dollars for a period equal in length to such Interest Period (“LIBOR”), as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) (in such case, the “LIBOR Rate”) at or about 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; and
(b) for any interest calculation with respect to any ABR Loan on any date, the rate per annum equal to the LIBOR Rate, at or about 11:00 a.m., London time, two London Banking Days prior to such date for U.S. Dollar deposits with a term of one month commencing that day;
provided that if the Eurodollar Rate shall be less than 1.00%, such rate shall be deemed 1.00% for purposes of this Agreement.
“Event of Default” has the meaning assigned to such term in Section 7.01.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Excluded Indebtedness” means all Indebtedness permitted to be incurred under Section 6.01.
“Excluded Property” means, collectively, with respect to any Loan Party, (a) any inventory held by such Loan Party as consignee pursuant to a consignment arrangement entered into with a Person other than a Loan Party as consignor and (b) the Equity Interests of any Foreign Subsidiary or FSHCO that are directly owned by such Loan Party, other than (i) sixty-five percent (65.0%) (or such lesser percentage as is owned by such Loan Party) of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treasury Regulations Section 1.956–2(c)(2)), and (ii) one-hundred percent (100.0%) (or such lesser percentage as is owned by a Loan Party) of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treasury Regulations Section 1.956–2(c)(2)), (c) any Equity Interests of any Subsidiaries held by the Subsidiaries (to the extent that such Subsidiary is a Foreign Subsidiary) referred to in the preceding clause (b), (d) any intent-to-use trademark or service mark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would violate the Lanham Act or impair the validity or enforceability of, or render void or voidable or result in the cancellation of, such Loan Party’s right, title or interest therein or any trademark or service mark that issues as a result of such intent-to-use trademark or service mark application under applicable federal law,
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and (e) any assets or property of such Loan Party upon which, after giving effect to the terms and conditions of the Orders, a security interest or Lien cannot be lawfully granted.
“Excluded Subsidiary” means, without duplication, (a) any FSHCO, (b) any Domestic Subsidiary that is a direct or indirect subsidiary of a Foreign Subsidiary that is a CFC, (c) any Subsidiary that exists on the Closing Date and is not a debtor in the Chapter 11 Case and (d) any Domestic Subsidiary that is not a Material Domestic Subsidiary; provided that notwithstanding anything to the contrary contained herein, “Excluded Subsidiary” shall not include any Domestic Subsidiary that is a Subsidiary Guarantor (under and as defined in the Prepetition Credit Agreement) as of the Closing Date.
“Excluded Taxes” means (a) in the case of each Lender and the Administrative Agent, taxes imposed on its overall net income, and franchise taxes imposed on it in lieu of net income taxes, by a jurisdiction (including any political subdivision thereof) as a result of (i) such Lender or the Administrative Agent’s being organized under the laws of or having a principal office in such jurisdiction and, in the case of a Lender, having an applicable lending office in such jurisdiction or (ii) any other present or former connection between such Lender or the Administrative Agent and the jurisdiction (other than any connection arising from such Lender or the Administrative Agent having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to and/or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document); (b) any tax in the nature of branch profits taxes imposed by any jurisdiction described in clause (a); (c) in the case of a Non-U.S. Lender, United States federal withholding tax imposed pursuant to laws in effect on the date on which (i) such Non-U.S. Lender becomes a Lender or (ii) such Non-U.S. Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.14, additional amounts with respect to such taxes were payable either to such Non-U.S. Lender’s assignor immediately before such Non-U.S. Lender became a party hereto or to such Non-U.S. Lender immediately before it changed its lending office; (d) any taxes attributable to such Lender’s failure to comply with Section 2.14(e) and (e) any United States federal withholding taxes imposed under FATCA.
“Existing Liens” has the meaning specified in Section 2.23(a)(iv).
“Fair Market Value” means, with respect to any asset, as determined by the Borrower, the price (after taking into account any liabilities relating to such assets) that would be negotiated in an arm’s-length transaction for cash between a willing seller and a willing and able buyer, neither of which is under any compulsion to complete the transaction.
“Facility Fee” has the meaning specified in Section 2.09(a).
“Facility Termination Date” means the date as of which all of the following shall have occurred: (a) all Commitments have expired or been terminated, (b) all Obligations then due and owing have been paid in full in cash or immediately available funds (other than contingent indemnification obligations for which no claim has been asserted) or, with respect to any Obligations constituting Cash Management Obligations, other arrangements with respect thereto reasonably satisfactory to the applicable Cash Management Bank shall have been made and (c) all Letters of Credit have terminated or expired (other than Letters of Credit as to which other arrangements with respect thereto reasonably satisfactory to the Issuing Bank shall have been made).
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities entered into in connection with the implementation of the foregoing.
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“Federal Funds Rate” means, for any day, the rate per annum calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided that if the Federal Funds Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
“Fee Letter” means that certain fee letter agreement, dated the date hereof, by and among the Borrower and Bank of America.
“Fee Payment Date” means (a) the last Business Day of each March, June, September and December and (b) the last day of the Revolving Commitment Period.
“Financial Officer” means the chief financial officer, principal accounting officer, treasurer or controller of the Borrower.
“Final DIP Order” means, collectively, the final order or orders entered by the Bankruptcy Court with respect to the Loan Parties in the Chapter 11 Case after a final hearing under Bankruptcy Rule 4001(c)(2), authorizing and approving the DIP Facility and the terms of this Agreement and the other Loan Documents (including the payment of interest, fees, costs and expenses hereunder and thereunder) and granting the Liens, status and protections set forth in Section 2.23 hereof or provided for in the Collateral Documents, but further providing for a waiver of any rights to pursue the collateral of the Prepetition Agent or the Prepetition Lenders for any amounts pursuant to section 506(c) of the Bankruptcy Code, which order or judgment is in effect and not stayed, and as to which the time to appeal, petition for certiorari, or move for re-argument or rehearing has expired and as to which no appeal, petition for certiorari, or other proceeding for re-argument or rehearing shall then be pending, or, if pending, no stay pending appeal shall have been granted, as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof, and which order shall be in form and substance reasonably satisfactory to the Administrative Agent.
“Final DIP Order Entry Date” means the date on which the Final DIP Order (which, for purposes of this definition, shall be determined without regard to whether or not the time to appeal, petition for certiorari, or move for re-argument or rehearing has expired) shall have been entered on the docket of the Bankruptcy Court in the Chapter 11 Case.
“Flood Documentation” shall mean with respect to each Mortgaged Property located in the United States of America or any territory thereof, (i) a completed “life-of-loan” Federal Emergency Management Agency standard flood hazard determination (to the extent a Mortgaged Property is located in a Special Flood Hazard Area, together with a notice about Special Flood Hazard Area status and flood disaster assistance duly executed by the applicable Loan Party relating thereto) and (ii) a copy of, or a certificate as to coverage under, and a declaration page relating to, the insurance policies, along with a copy of the underlying policies (if requested by the Administrative Agent) required by Section 5.05 hereof and the applicable provisions of the Collateral Documents, the property policy shall (A) be endorsed or otherwise amended to include a “standard” lender’s loss payable or mortgagee endorsement (as applicable), (B) the general liability policy shall name the Administrative Agent, on behalf of the Secured Parties, as additional insured, (C) identify the address of each property located in a Special Flood Hazard Area, the applicable flood zone designation and the flood insurance coverage and deductible relating thereto and (D)
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be otherwise in form and substance reasonably satisfactory to the Administrative Agent, subject to the provisions of Section 5.05.
“Flood Insurance Laws” shall mean, collectively, (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statute thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto, (iv) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (v) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
“Foreign Lender” means any Lender that is not a “United States person” as defined in Section 7701(a)(30) of the Code.
“Foreign Subsidiary” means any Subsidiary of the Borrower that is organized under the laws of any jurisdiction other than the United States, any State thereof or the District of Columbia.
“Fronting Fee” has the meaning assigned to such term in Section 2.09(d).
“FSHCO” means any Domestic Subsidiary that owns no material assets other than Equity Interests of one or more Foreign Subsidiaries that are CFCs or Equity Interests of one or more other FSHCOs.
“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession of the United States, consistently applied.
“Governmental Authority” means the government of the United States of America, any other nation or any political subdivision thereof, whether state, local, provincial or otherwise and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
“Guarantee” of or by any Person (the “Guarantor”) means a direct or indirect guarantee by any Person of any Indebtedness of any other Person and includes any obligation, direct or indirect, contingent or otherwise, of such Person (1) to purchase or pay (or advance or supply funds for the purchase or payment of) Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreements to keep well, to purchase assets, goods, securities or services (unless such purchase arrangements are on arm’s length terms and are entered into in the ordinary course of business), to take-or-pay, or to maintain financial statement conditions or otherwise); or (2) entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); “Guarantee,” when used as a verb, and “Guaranteed” have correlative meanings.
“Guarantee Agreement” means the Guarantee Agreement dated as of the date hereof by the Borrower and each Subsidiary Guarantor in favor of the Administrative Agent.
“Guarantor” has the meaning assigned to such term in the definition of “Guarantee.”
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or
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asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
“HMT” has the meaning assigned to such term in the definition of “Sanction(s).”
“Impacted Loans” has the meaning assigned to such term in Section 2.11(a)(i).
“Indebtedness” of any Person at any date means, without duplication:
(1) all liabilities, contingent or otherwise, of such Person for borrowed money;
(2) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(3) all direct or contingent obligations of such Person in respect of letters of credit, letters of guaranty, bankers’ acceptances and similar credit transactions;
(4) all obligations of such Person to pay the deferred and unpaid purchase price of property or services, except trade payables and accrued expenses incurred by such Person in the ordinary course of business;
(5) all Capital Lease Obligations of such Person;
(6) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person;
(7) all Indebtedness of others Guaranteed by such Person to the extent of such Guarantee; provided that Indebtedness of the Borrower or its subsidiaries that is Guaranteed by the Borrower or the Borrower’s subsidiaries shall only be counted once in the calculation of the amount of Indebtedness of the Borrower and its subsidiaries on a consolidated basis; and
(8) all obligations of such Person under conditional sale or other title retention agreements relating to assets purchased by such Person (excluding obligations arising from inventory transactions in the ordinary course of business).
The amount of any Indebtedness which is incurred at a discount to the principal amount at maturity thereof as of any date shall be deemed to have been incurred at the accreted value thereof as of such date. The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all unconditional obligations as described above, the maximum liability of such Person for any such contingent obligations at such date and, in the case of clause (6), the lesser of (a) the Fair Market Value of any asset subject to a Lien securing the Indebtedness of others on the date that the Lien attaches and (b) the amount of the Indebtedness secured.
“Indemnified Taxes” means all Taxes other than Excluded Taxes.
“Indemnitee” has the meaning assigned to such term in Section 9.04(b).
“Ineligible Institution” means (a) a Defaulting Lender, (b) the Borrower, any of its Subsidiaries or any of its Affiliates, or (c) a company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person or relative(s) thereof.
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“Information” has the meaning assigned to such term in Section 9.13.
“Initial Budget” has the meaning assigned to such term in Section 4.01(j).
“Insolvency or Liquidation Proceeding” means:
(a) any voluntary or involuntary case or proceeding under any Debtor Relief Law with respect to any Loan Party;
(b) any other voluntary or involuntary insolvency, reorganization or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding with respect to any Loan Party or with respect to a material portion of their respective assets;
(c) any liquidation, dissolution, reorganization or winding up of any Loan Party, whether voluntary or involuntary, whether or not under a court’s jurisdiction or supervision, and whether or not involving insolvency or bankruptcy; or
(d) any general assignment for the benefit of creditors or any other marshalling of assets and liabilities of any Loan Party.
“Insolvent” with respect to any Multiemployer Plan means the condition that such Multiemployer Plan is insolvent within the meaning of Section 4245 of ERISA.
“Intellectual Property” means the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including copyrights, patents, trademarks, service marks, trade dress, internet domain names, software, data, databases, technology, know-how, trade secrets, processes and other confidential or proprietary information, together with all registrations and applications for registration thereof, all licenses thereof or pertaining thereto, and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.
“Intellectual Property Security Agreements” has the meaning assigned to such term in the Security Agreement.
“Interest Election Request” means a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.05.
“Interest Payment Date” means (a) with respect to any Eurodollar Loan, (i) the last Business Day of each Interest Period applicable to such Loan and (ii) the last day of the Revolving Commitment Period and (b) with respect to any ABR Loan, (i) the last Business Day of each calendar month and (ii) the last day of the Revolving Commitment Period.
“Interest Period” means, as to any Eurodollar Loan, (a) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such Eurodollar Loan and ending one month thereafter, as selected by the Borrower in its Committed Loan Notice, as the case may be, given with respect thereto, and (b) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such Eurodollar Loan and ending one month thereafter, as selected by the Borrower by irrevocable Committed Loan Notice to the Administrative Agent not later than 12:00 noon, New York City time, on the date that is three Business Days prior to the last day of the then current Interest Period with respect thereto; provided that all of the foregoing provisions relating to Interest Periods are subject to the following:
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(i) if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day;
(ii) the Borrower may not select an Interest Period that would extend beyond the Maturity Date; and
(iii) any Interest Period of one month’s duration that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month.
“Interim DIP Order” means, collectively, the interim order or orders entered by the Bankruptcy Court with respect to the Loan Parties in the Chapter 11 Case on or prior to the date occurring five (5) Business Days after the Petition Date (or such later date as agreed by the Required Lenders), together with all extensions, modifications and amendments thereto, which, among other matters but not by way of limitation, authorizes, on an interim basis, the Loan Parties to execute and perform under the terms of this Agreement and the other Loan Documents, as applicable, pay all fees and expenses provided for herein, and incur (and guarantee) and secure the Loans and other Obligations in connection therewith, which order shall be otherwise in form and substance reasonably satisfactory to the Administrative Agent, and which shall be deemed satisfactory to the Administrative Agent if such order is substantially in the form of Exhibit L.
“Interim DIP Order Entry Date” means the date on which the Interim DIP Order was entered on the docket of the Bankruptcy Court in the Chapter 11 Case.
“Investment Banker” means any investment banking firm reasonably satisfactory to the Administrative Agent (it being understood that Evercore Inc. is satisfactory) retained by the Loan Parties to market the assets of the Loan Parties and their Subsidiaries for sale.
“Investments” has the meaning assigned to such term in Section 6.11.
“Involuntary Disposition” means any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any property of the Borrower or any Subsidiary.
“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
“Issuing Document” means with respect to any Letter of Credit, the Letter of Credit application and any other document, agreement and instrument created by the Issuing Bank and the Borrower or any subsidiary or in favor of the Issuing Bank and relating to such Letter of Credit.
“Issuing Bank” means Bank of America, in its capacity as issuer of Letters of Credit, and its successors in such capacity as provided in Section 2.17(i).
“LC Disbursement” means a payment made by the Issuing Bank pursuant to a demand for payment or drawing under a Letter of Credit.
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“LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time, in each case after giving effect any issuances, amendments, renewals, increases and extensions of Letters of Credit occurring as of such date and any other changes in the amount of the LC Exposure on such date, including as a result of any reimbursements by the Borrower of LC Disbursements. The LC Exposure of any Lender at any time shall be its Revolving Commitment Percentage of the total LC Exposure at such time. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.07. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“LC Sublimit” means, as of any date of determination, an amount equal to the lesser of (a) the Total Revolving Commitments as of such date and (b) the difference of (i) $45,000,000 minus (ii) the aggregate amount of all LC Disbursements. The LC Sublimit is part of, and not in addition to, the Revolving Facility.
“Lead Arranger” means Bank of America, in its capacity as sole lead arranger and sole bookrunner.
“Lenders” means the Persons listed on Schedule 1.01A and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.
“Letter of Credit” means (a) any letter of credit issued pursuant to Section 2.17 and (b) any Prepetition Letter of Credit that, upon request of the Borrower, is deemed in writing by the Bankruptcy Court, pursuant to an Order or otherwise, to be outstanding under this Agreement.
“LIBOR” has the meaning assigned to such term in the definition of “Eurodollar Rate.”
“LIBOR Rate” has the meaning assigned to such term in the definition of “Eurodollar Rate.”
“LIBOR Screen Rate” means the LIBOR quote on the applicable screen page the Administrative Agent designates to determine LIBOR (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time).
“LIBOR Successor Rate” has the meaning assigned to such term in Section 2.11(c).
“LIBOR Successor Rate Conforming Changes” has the meaning assigned to such term in Section 2.11(g).
“Lien” means, with respect to any asset, any mortgage, deed of trust, lien (statutory or other), pledge, easement, charge, security interest or other encumbrance of any kind or nature in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset. “Lien” shall not, however, include any interest of a vendor in any inventory of the Borrower or any of its Subsidiaries arising out of such inventory being subject to a “sale or return” arrangement with such vendor or any consignment by any third party of any inventory to the Borrower or any of its Subsidiaries.
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“Liquidity” means, as of any date of determination, the sum of (a) all domestic cash and Cash Equivalents of the Loan Parties on such date of determination that do not appear (or would not be required to appear) as “restricted” on a consolidated balance sheet of the Borrower (other than solely as a result of Liens thereon under this Agreement or any other Loan Document or imposed by any Prepetition Loan Document or the Prepetition Secured Notes), measured based on daily closing account balances, plus (b) the amount by which (i) the Revolving Loans Sublimit as of such date exceeds (ii) the Total Revolving Loans as of such date.
“Loan Documents” means the collective reference to this Agreement, the Guarantee Agreement, the Collateral Documents, the Letters of Credit, the Issuing Documents, the Fee Letter, any other agreement, instrument or document entered into in connection with this Agreement and designated by its terms as a “Loan Document” and any amendments or waivers to any of the foregoing (but specifically excluding any Cash Management Agreement).
“Loan Parties” means the collective reference to the Borrower and the Subsidiary Guarantors.
“Loans” means the loans made by the Lenders to the Borrower pursuant to this Agreement.
“London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market
“Material Adverse Effect” means a material adverse effect on (a) the business, operations, property or condition, financial or otherwise, of the Borrower and its Subsidiaries taken as a whole or that results in a material impairment of the ability of the Borrower to perform any payment obligations hereunder or (b) the validity or enforceability of this Agreement or the other Loan Documents or the rights or remedies of the Administrative Agent or the Lenders hereunder or thereunder; provided that changes, events, effects, or circumstances which, directly or indirectly, to the extent they relate to or result from the following, shall be excluded from the determination of a Material Adverse Effect: (i) the filing of the Chapter 11 Case (and any defaults under Prepetition agreements, so long as the exercise of remedies as a result of such defaults are stayed under the Bankruptcy Code or such agreements are voided or invalidated by the Bankruptcy Court); (ii) any litigation or claim threatened or initiated by creditors of the Loan Parties against the Loan Parties or any of their respective officers or directors, in each case, arising out of filing of the Chapter 11 Case or the transactions contemplated thereby; and (iii) the existence of any Prepetition claim or liability which is unsecured and junior in priority to the Obligations.
“Material Domestic Subsidiary” means any Domestic Subsidiary that has either (a) total assets with an aggregate fair market value (as reasonably determined by the Borrower) in excess of $2,000,000 or (b) total quarterly revenues in an amount in excess of $2,000,000, in each case, as of the end of the most recent fiscal quarter of the Borrower for which financial statements of the Borrower are available.
“Material Indebtedness” means Indebtedness (other than the Loans), of any one or more of the Borrower and its Subsidiaries in an aggregate principal amount exceeding $1,000,000.
“Maturity Date” means the earliest to occur of the following:
(a) unless the Final DIP Order Entry Date shall have occurred, the date that is thirty (30) calendar days after the Interim DIP Order Entry Date, or if such date (as may be extended) is not a Business Day, the next preceding Business Day;
(b) the date upon which any Plan of Reorganization becomes effective; and
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(c) the date that is six (6) months after the Petition Date;
provided that notwithstanding the foregoing or anything to the contrary in this Agreement or any other Loan Document, each of the dates contemplated by the foregoing clauses (a) and (c) may be extended with the consent of the Administrative Agent and the Required Lenders in their reasonable discretion to, in any such case, a date that is no later than nine (9) months after the Petition Date.
“Moody’s” means Moody’s Investors Service, Inc.
“Mortgaged Properties” shall mean all Real Property, including the Real Properties that are identified on Schedule 1.01B.
“Mortgages” shall mean, collectively, (a) the mortgages, trust deeds, deeds of trust, deeds to secure debt, assignments of leases and rents, debentures, and other security documents (including amendments to any of the foregoing) executed and delivered with respect to the Real Properties required hereunder to be encumbered by a Mortgage (either as stand-alone documents or forming part of other Collateral Documents), each in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, and (b) the Final DIP Order (to the extent the Administrative Agent elects to record the Final DIP Order in lieu of, or in addition to, a document described in the foregoing clause (a)), in case of each of the foregoing clauses (a) and (b), as the same may be amended, supplemented or otherwise modified from time to time.
“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“Net Proceeds” means:
(a) 100% of the cash proceeds actually received by the Borrower or any Subsidiary (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but only as and when received) from any Asset Sale, net of (i) attorneys’ fees, accountants’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer Taxes, deed or mortgage recording Taxes, other customary expenses and brokerage, consultant and other customary fees actually incurred in connection therewith, (ii) required payments of Indebtedness that is secured by a Lien permitted hereunder (provided such Lien (A) ranks senior to the Liens securing the Obligations or (B) secures Indebtedness permitted under Section 6.01(c)), (iii) [reserved], (iv) Taxes paid or payable (in the good faith determination of the Borrower) as a direct result thereof, and (v) the amount of any reasonable reserve established in accordance with GAAP against any adjustment to the sale price or any liabilities (other than any Taxes deducted pursuant to clause (i) or (iv) above) (x) related to any of the applicable assets and (y) retained by the Borrower or any of the Subsidiaries including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations (provided that (1) the amount of any reduction of such reserve (other than in connection with a payment in respect of any such liability), prior to the date occurring nine (9) months after the date of the respective Asset Sale, shall be deemed to be cash proceeds of such Asset Sale occurring on the date of such reduction and (2) the amount of any such reserve that is maintained as of the date occurring nine (9) months after the date of the applicable Asset Sale shall be deemed to be Net Proceeds from such Asset Sale as of such date); and
(b) 100% of the cash proceeds actually received by the Borrower or any Subsidiary (including casualty insurance settlements and condemnation awards, but only as and when received) from any Recovery Event, net of (i) attorneys’ fees, accountants’ fees, transfer Taxes,
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deed or mortgage recording Taxes on such asset, other customary expenses and brokerage, consultant and other customary fees actually incurred in connection therewith, (ii) required payments of Indebtedness that is secured by a Lien permitted hereunder (provided such Lien (A) ranks senior to the Liens securing the Obligations or (B) secures Indebtedness permitted under Section 6.01(c) ), (iii) [reserved], and (iv) Taxes paid or payable (in the good faith determination of the Borrower) as a direct result thereof; provided, that no net cash proceeds calculated in accordance with the foregoing realized in a single transaction or series of related transactions shall constitute Net Proceeds unless such net cash proceeds shall exceed $250,000.
“New LC Sublimit” means the lesser of (a) the LC Sublimit and (b) $5,000,000. The New LC Sublimit is part of, and not in addition to, the LC Sublimit.
“New Letter of Credit” means, collectively, (a) any Letter of Credit other than a Letter of Credit that is (i) issued hereunder to replace a Prepetition Letter of Credit or (ii) deemed outstanding hereunder pursuant to clause (b) of the definition of “Letter of Credit” and (b) with respect to any amendment to a Letter of Credit described in clause (a) that increases the face amount of such Letter of Credit, that portion of such Letter of Credit that represents such increase. If any Letter of Credit described in the foregoing clause (a)(i) has a face amount in excess of the Prepetition Letter of Credit that such Letter of Credit replaces, then such excess shall be deemed a New Letter of Credit.
“Non-Consenting Lender” has the meaning assigned to such term in Section 2.16(c).
“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Non-Defaulting Revolving Lender” means, at any time, each Revolving Lender that is not a Defaulting Lender at such time.
“Non-Extension Notice Date” has the meaning assigned to such term in Section 2.17(b).
“Non-Loan Party” means any Subsidiary other than a Loan Party.
“Non-U.S. Lender” means any Lender that is not a U.S. Lender.
“Notice of Loan Prepayment” means a notice of prepayment with respect to a Loan, which shall be substantially in the form of Exhibit M or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer.
“Obligations” means the unpaid principal of and interest on (including interest, fees and expenses accruing after the maturity of the Loans) the Loans, the obligations of the Loan Parties to reimburse the Issuing Bank for demands for payment or drawings under a Letter of Credit, any Cash Management Obligations, and all other obligations and liabilities of the Borrower and the other Loan Parties to the Administrative Agent or to any Secured Party, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document or any other document made, delivered or given in connection herewith or therewith, whether on account of principal, interest, fees, indemnities, costs, expenses or otherwise, including, in each case, (i) all fees, charges and disbursements of counsel to the Administrative Agent or to any Lender that are required to be paid by the Borrower pursuant hereto and (ii) interest, fees and expenses accruing after the Petition Date in the Chapter 11 Case, whether or not a claim for post-filing or post-petition interest, fees and expenses is allowed in such proceeding.
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“OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.
“Officer’s Certificate” means a certificate of a Responsible Officer in form and substance reasonably acceptable to the Administrative Agent.
“Orders” means the Interim DIP Order and the Final DIP Order.
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing, excise or property Taxes, charges or similar levies arising from any payment made under any Loan Document or from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document.
“Outstanding Revolving Credit” means, with respect to any Revolving Lender at any time, an amount equal to the sum of (a) the aggregate then outstanding principal amount of such Revolving Lender’s Revolving Loans after giving effect to any Borrowings and prepayments or repayments occurring on the date of determination and (b) such Revolving Lender’s LC Exposure.
“parent” has the meaning assigned to such term in the definition of “subsidiary.”
“Participant” has the meaning assigned to such term in Section 9.05(c).
“Participant Register” has the meaning assigned to such term in Section 9.05(c).
“Participation Fee” has the meaning assigned to such term in Section 2.09(d).
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“Permitted Encumbrances” means:
(a) Liens imposed by law for taxes, assessments or governmental charges that are not yet due or are being contested in compliance with Section 5.04;
(b) landlord’s, carriers’, warehousemen’s, mechanics’, supplier’s, materialmen’s, repairmen’s and other like Liens imposed by law, arising in the ordinary course of business and securing (i) accounts payable and accrued expenses existing on the Petition Date or (ii) obligations that are not overdue by more than 30 days or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in compliance with workers’ compensation (or pursuant to letters of credit issued in connection with such workers’ compensation compliance), unemployment insurance and other social security laws or regulations;
(d) deposits to secure the performance of tenders, bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds, leases, subleases, government contracts and return-of-money bonds, letters of credit and other obligations of a like nature, in each case in the ordinary course of business (exclusive of the obligation for the payment of borrowed money);
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(e) judgment liens in respect of judgments that do not constitute an Event of Default under Section 7.01(j);
(f) easements, zoning restrictions, rights-of-way, survey exception, minor encumbrances, reservation of, licenses, electric lines, telegraph and telephone lines and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrower or any Subsidiary;
(g) Liens securing obligations in respect of trade-related letters of credit and covering the goods (or the documents of title in respect of such goods) financed or the purchase of which is supported by such letters of credit and the proceeds and products thereof;
(h) Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(i) Liens securing obligations in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations (other than obligations in respect of Indebtedness) and trade-related letters of credit, in each case, outstanding on the Closing Date or issued thereafter in and covering the goods (or the documents of title in respect of such goods) financed by such letters of credit, banker’s acceptances or bank guarantees and the proceeds and products thereof;
(j) licenses, sublicenses, covenants not to sue, releases or other rights under Intellectual Property granted to others in the ordinary course of business or in the reasonable business judgment of the Borrower or any Subsidiary; and
(k) title defects, encroachments or irregularities which are of a minor nature and which in the aggregate do not materially impair the value of any real property or the use of the affected property for the purpose for which it is used by the Borrower or any Subsidiary.
“Permitted Liens” means Liens permitted by Section 6.02.
“person” and “group” have the meanings given to them for purposes of Section 13(d) and 14(d) of the Exchange Act or any successor provisions, and the term “group” includes any group acting for the purpose of acquiring, holding or disposing of securities within the meaning of rule 13d-5(b)(1) under the Exchange Act, or any successor provision.
“Person” means any individual, corporation, partnership, limited liability company, joint venture, incorporated or unincorporated association, joint-stock company, trust, unincorporated organization or government or other agency or political subdivision thereof or other entity of any kind.
“Petition Date” has the meaning specified in the recitals hereto.
“Plan” means an employee pension benefit plan as defined in Section 3(2) of ERISA (other than a Multiemployer Plan), subject to the provisions of Section 302 and Title IV of ERISA or Section 412 of the Code, and in respect of which the Borrower or any ERISA Affiliate is (or if such plan were terminated, would under Section 4062 or 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
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“Plan of Reorganization” means any plan of reorganization or plan of liquidation filed under Section 1121 of the Bankruptcy Code.
“Platform” has the meaning assigned to such term in Section 9.17.
“Postpetition” means the time period beginning immediately upon the filing of the Chapter 11 Case.
“Prepetition” means the time period prior to the filing of the Chapter 11 Case.
“Prepetition Agent” means the “Administrative Agent” under and as defined in the Prepetition Credit Agreement.
“Prepetition Collateral” means, collectively, (a) all collateral securing the Prepetition Facility Obligations and (b) all collateral securing the Prepetition Secured Notes Obligations.
“Prepetition Credit Agreement” means the Credit Agreement, dated as of September 30, 2016, by and among the Borrower, the lenders party thereto, the issuing banks party thereto and Bank of America, as Prepetition Agent.
“Prepetition Facility Obligations” means the “Obligations” under and as defined in the Prepetition Credit Agreement.
“Prepetition Issuing Bank” means each “Issuing Bank” under and as defined in the Prepetition Credit Agreement.
“Prepetition Lenders” means the “Lenders” under and as defined in the Prepetition Credit Agreement.
“Prepetition Letters of Credit” means each “Letter of Credit” under and as defined in the Prepetition Credit Agreement issued prior to, and outstanding on, the Petition Date and identified on Schedule 1.01C hereto.
“Prepetition Loan Documents” means the “Loan Documents” under and as defined in the Prepetition Credit Agreement.
“Prepetition Payment” means a direct or indirect payment, redemption, purchase, defeasance or acquisition for value (by way of adequate protection or otherwise) of principal or interest or otherwise on account of any Prepetition (a) Indebtedness (including, without limitation, the Indebtedness under the Prepetition Loan Documents), (b) “critical vendor payments” or (c) trade payables (including, without limitation, in respect of reclamation claims), or other Prepetition claims against any Loan Party.
“Prepetition Priority Payment Obligations” means the “Priority Payment Obligations” under and as defined in the Prepetition Credit Agreement.
“Prepetition Secured Noteholders” means, as of any date of determination, each Person that is a registered holder of the Prepetition Secured Notes as of such date.
“Prepetition Secured Notes” means those certain 8.750% Senior Secured Notes due 2023, issued by the Borrower pursuant to the Prepetition Secured Notes Indenture, in an initial aggregate original principal amount of $450,000,000, and any registered exchange notes issued in exchange therefor.
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“Prepetition Secured Notes Indenture” means that certain Indenture, dated as of September 30, 2016, by and among the Borrower, as issuer, the subsidiary guarantors party thereto and the Prepetition Secured Notes Trustee.
“Prepetition Secured Notes Obligations” means all of the obligations of the Loan Parties under the Prepetition Secured Notes and the Prepetition Secured Notes Indenture, including principal, premium, if any, and interest on the Prepetition Secured Notes.
“Prepetition Secured Notes Trustee” means Wells Fargo Bank, National Association, in its capacity as trustee and as collateral agent under the Prepetition Secured Notes Indenture, or any successor thereto.
“Prepetition Term Lenders” means the “Term Lenders” under and as defined in the Prepetition Credit Agreement.
“Primed Liens” has the meaning specified in Section 2.23(a)(iii).
“Priming Lien” has the meaning specified in Section 2.23(a)(iii).
“Professional Fees” means fees and expenses of third-party professionals engaged by or for the benefit of the Loan Parties, the Administrative Agent, the Lenders or the Issuing Bank.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Lender” has the meaning assigned to such term in Section 9.17.
“QFC Credit Support” has the meaning specified in Section 9.21.
“Real Property” shall mean, collectively, all right, title and interest (including any leasehold estate) in and to any and all parcels of or interests in real property owned in fee simple or leased by any Loan Party, whether by lease, license or other means, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment, incidental to the ownership, lease or operation thereof.
“Recovery Event” means any event that gives rise to the receipt by the Borrower or any of its Subsidiaries of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets, business interruption or real property (including any improvements thereon).
“refinance” means, in respect of any Indebtedness, to refinance, extend, renew, refund, repay, prepay, or to issue other Indebtedness in exchange or replacement for, such Indebtedness.
“Register” has the meaning assigned to such term in Section 9.05(b)(iv).
“Related Business” means any business in which the Borrower or any Subsidiary was engaged on the Closing Date or any reasonable extension of such business and any business related, ancillary or complementary to any business of the Borrower or any Subsidiary in which the Borrower or any Subsidiary was engaged on the Closing Date or any reasonable extension of such business.
“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.
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“Required Lenders” means, at any time, Lenders having Aggregate Exposure that, taken together, represents more than 50% of the Aggregate Exposure of all Lenders at such time; provided, that the Aggregate Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.
“Requirements of Law” means, as to any Person, the Certificate of Incorporation and By-Laws or other organizational or governing documents of such Person, and any law, treaty, rule, regulation or official administrative pronouncement or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means the chief executive officer, president, chief financial officer, treasurer, assistant treasurer or controller of a Loan Party, and solely for purposes of the delivery of incumbency certificates pursuant to Section 4.01, the secretary or any assistant secretary of a Loan Party and, solely for purposes of notices given pursuant to Article II, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party. To the extent requested by the Administrative Agent, each Responsible Officer executing any document delivered hereunder will provide an incumbency certificate and to the extent requested by the Administrative Agent, appropriate authorization documentation, in form and substance satisfactory to the Administrative Agent.
“Restricted Payment” means (a) any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in the Borrower or any Subsidiary or (b) any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests of the Borrower or any option, warrant or other right to acquire any such Equity Interests.
“Revolving Borrowing” has the meaning assigned to such term in Section 1.02.
“Revolving Commitment” means, as to any Revolving Lender, the obligation of such Revolving Lender to make Revolving Loans and purchase participation interests in Letters of Credit in an aggregate principal amount not to exceed the amount set forth under the heading “Revolving Commitment” opposite such Lender’s name on Schedule 1.01A or in the Assignment and Assumption pursuant to which such Revolving Lender became a party hereto, as the same may be changed from time to time pursuant to the terms of this Agreement. The aggregate amount of all Revolving Commitments as of the Closing Date is $100,000,000.
“Revolving Commitment Percentage” means, with respect to any Lender at any time, the ratio (expressed as a percentage) of such Lender’s Revolving Commitment at such time to the Total Revolving Commitments at such time.
“Revolving Commitment Period” means the period from and including the Closing Date to the Maturity Date.
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“Revolving Facility” means the credit facility constituted by the Revolving Commitments and the extensions of credit thereunder.
“Revolving Lender” means each Lender that has a Revolving Commitment or that holds Revolving Loans.
“Revolving Loans” has the meaning assigned to such term in Section 2.01(a).
“Revolving Loans Sublimit” means, as of any date of determination, an amount equal the lesser of (a) the Total Revolving Commitments as of such date and (b) the sum of (i) (A) if such determination is made prior to the Compliance Date, $27,500,000 and (B) if such determination is made on or after the Compliance Date, $55,000,000, plus (ii) the aggregate amount of all LC Disbursements. The Revolving Loans Sublimit is part of, and not in addition to, the Revolving Facility.
“Sale Transaction” has the meaning assigned to such term in Section 4.01(i).
“Sanction(s)” means any sanction, law, rule or regulation administered or enforced by the United States Government (including without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury (“HMT”) or other relevant sanctions authority.
“Scheduled Unavailability Date” has the meaning assigned to such term in Section 2.11(c)(ii).
“SEC” means the Securities and Exchange Commission or any successor thereto.
“Secured Parties” has the meaning assigned to such term in the Security Agreement.
“Security Agreement” means the Security Agreement dated as of the date hereof by the Borrower and the Subsidiary Guarantors in favor of the Administrative Agent.
“SOFR-Base Rate” has the meaning assigned to such term in Section 2.11(g).
“Special Flood Hazard Area” shall have the meaning assigned to such term in Section 5.05(e).
“Specified Cash Collateral” means all “Cash Collateral” as defined in Section 363 of the Bankruptcy Code, all deposits subject to setoff and cash arising from the collection or other conversion to cash of property of the Loan Parties in which the Prepetition Lenders or Prepetition Agent has a security interest, Lien or mortgage, whether such security interests, Liens or mortgages existed as of the commencement of the Chapter 11 Case or arise thereafter pursuant to an Order, and whether the property converted to cash existed as of the commencement of the Chapter 11 Case or arose or was generated thereafter, including, without limitation, all proceeds from the sale or other disposition of the Prepetition Collateral or Collateral.
“Standard & Poor’s” means Standard & Poor’s Rating Services a division of The McGraw-Hill Companies, Inc.
“subsidiary ” means, with respect to any Person (the “parent”):
(1) any corporation, limited liability company, association or other business entity of which more than 50% of the total voting power of the Equity Interests entitled (without regard to the occurrence of any contingency) to vote in the election of the board of directors thereof is at
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the time owned or controlled, directly or indirectly, by such Person or one or more of the other subsidiaries of such Person (or a combination thereof); and
(2) any partnership (a) the sole general partner or the managing general partner of which is such Person or a subsidiary of such Person or (b) the only general partners of which are such Person or one or more subsidiaries of such Person (or any combination thereof).
“Subsidiary” means, unless otherwise specified, a subsidiary of the Borrower.
“Subsidiary Guarantor” means each Domestic Subsidiary that is a party to the Guarantee Agreement; provided that no Excluded Subsidiary shall be required to be a Subsidiary Guarantor of any obligations under this Agreement.
“Superpriority Claim” means a claim against the Borrower or other Loan Parties in any Chapter 11 Case which is an administrative expense claim having priority over any or all administrative expenses of a Chapter 11 and Chapter 7 trustee, subject and subordinate to the Carve-Out, of the kind specified in Sections 364(c)(1), 503(b), 507(a)(2) and 507(d) of the Bankruptcy Code.
“Supported QFC” has the meaning specified in Section 9.21.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Total Revolving Commitments” means, at any time, the aggregate principal amount of the Revolving Commitments then in effect.
“Total Revolving Loans” means, at any time, the aggregate principal amount of the Revolving Loans of the Revolving Lenders outstanding at such time after giving effect to any Borrowings and prepayments or repayments occurring on the date of determination.
“Transactions” means (i) the entry into the Loan Documents and the borrowings under this Agreement to occur on the Closing Date and (ii) the payment of fees and expenses in connection therewith.
“Type” means, as to any Loan, its nature as an ABR Loan or a Eurodollar Loan.
“U.S. Lender” means any Lender that is a “United States person” within the meaning of Section 7701(a)(30) of the Code.
“U.S. Special Resolution Regimes” has the meaning specified in Section 9.21.
“U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 2.14(e)(ii)(B)(3).
“UCC” has the meaning assigned to such term in the Security Agreement.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to
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time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Undisclosed Administration” means, in relation to a Lender or its direct or indirect parent company, the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian, or other similar official by a supervisory authority or regulator under or based on the law in the country where such Lender or such parent company is subject to home jurisdiction, if applicable law requires that such appointment not be disclosed.
“Unsecured Creditors Committee” means the official committee of unsecured creditors if appointed in the Chapter 11 Case, as its composition may be amended from time to time.
“Unused Fee” has the meaning specified in Section 2.09(b).
“Updated Budget” has the meaning specified in Section 5.01(i).
“Upfront Fee” has the meaning specified in Section 2.09(c).
“USCO” means the United States Copyright Office.
“USPTO” means the United States Patent and Trademark Office.
“Variance Report” has the meaning specified in Section 5.01(h).
“Voting Stock” means the stock of the class or classes pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the Board of Directors of the Borrower (irrespective of whether or not at the time stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).
“Wholly Owned Subsidiary” means a subsidiary of which 100% of the Equity Interests (except for directors’ qualifying shares or certain minority interests owned by other Persons solely due to local law requirements that there be more than one stockholder, but which interest is not in excess of what is required for such purpose) are owned directly by the Borrower or through one or more Wholly Owned Subsidiaries.
“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had
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been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
Section 1.02 Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Type (e.g., a “Eurodollar Loan”, a “Eurodollar Revolving Loan”). Borrowings also may be classified and referred to by Type (e.g., a “Eurodollar Borrowing”, a “Eurodollar Revolving Borrowing”). (a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented, restated, amended and restated, extended or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights. The foregoing standards shall also apply to the other Loan Documents.
(b) Any reference herein to a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).
Section 1.04 Accounting Terms; GAAP. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that for purposes of any determinations associated with leases, including, without limitation, determinations of whether such leases are capital leases, whether obligations under such leases are Capital Lease Obligations, the amount of any Capital Lease Obligations associated with such leases, and the amount of operating expenses associated with such leases, Indebtedness shall be determined based on generally accepted accounting principles in the United States of America as in effect prior to giving effect to the adoption of ASU No. 2016-02 “Leases (Topic 842)” and ASU No. 2018-11 “Leases (Topic 842)”; provided, further, that, if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in
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effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision is amended in accordance herewith.
Section 1.05 Rounding. Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number). Section 1.06 Times of Day. Unless otherwise specified, all references herein to times of day shall be references to New York City time (daylight or standard, as applicable). The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration, submission or any other matter related to the rates in the definition of “Eurodollar Rate” or with respect to any rate that is an alternative or replacement for or successor to any of such rates (including, without limitation, any LIBOR Successor Rate) or the effect of any of the foregoing, or of any LIBOR Successor Rate Conforming Changes.
Section 1.07 Letter of Credit Amounts . Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time. Section 1.08 Currencies. Unless otherwise specifically set forth in this Agreement, monetary amounts are in Dollars. Notwithstanding anything to the contrary herein, no Default or Event of Default will arise as a result of any limitation or threshold set forth in Dollars being exceeded solely as a result of changes in currency exchange rates. Section 4.01 Closing Date. This Agreement, and the obligations of the Lenders to make the initial Loans hereunder, shall become effective on the date on which each of the following conditions is satisfied (or waived in accordance withSection 9.02):
(a) Loan Documents. The Administrative Agent (or its counsel) shall have received (including by telecopy or email transmission) (i) from each Loan Party party to the relevant Loan Document, a counterpart of such Loan Document signed on behalf of such Loan Party, as applicable and (ii) from each Lender party hereto, a counterpart of this Agreement signed on behalf of such Lender.
(b) Promissory Notes. The Administrative Agent shall have received an executed promissory note payable to the order of each Lender that requested such promissory note prior to the Closing Date (or, if requested by such Lender, to such Lender and its registered assigns) and in a form reasonably approved by the Administrative Agent.
(c) Legal Opinions of Counsel. The Administrative Agent shall have received a customary favorable written opinion with respect to authority of the Borrower and each Subsidiary Guarantor organized under the laws of New York or Delaware (addressed to the Administrative Agent and the Lenders as of the Closing Date and dated the Closing Date) of Sullivan & Cromwell LLP, counsel for the Borrower and the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent.
(d) Secretary’s Certificate. The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Loan Parties, the authorization of the Transactions and any other legal matters relating to the Loan Parties, this Agreement or the Transactions, including a customary secretary’s certificate of each Loan Party, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) Commencement of Chapter 11 Case. The Loan Parties shall have commenced the Chapter 11 Case in the Bankruptcy Court.
(f) Interim DIP Order. The Bankruptcy Court shall have entered the Interim DIP Order, which Interim DIP Order shall be in full force and effect and shall not have been amended,
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modified, stayed or reversed, other than immaterial modifications with the prior written consent of the Administrative Agent (such consent not to be unreasonably withheld). If the Interim DIP Order is the subject of a pending appeal in any respect, neither the Interim DIP Order nor the making of the Loans nor the performance by any Loan Party of any of its obligations under any of the Loan Documents shall be the subject of a presently effective stay pending appeal.
(g) Creation of Security Interests. The Interim DIP Order, upon entry of the Interim DIP Order, shall be effective to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a legal, valid and enforceable perfected security interest in and Lien on the Collateral with the priorities set forth in Section 2.23(a), in each case to the extent that such security interest can be perfected by order of the Bankruptcy Court.
(h) First day Orders. All of the “first day orders” entered by the Bankruptcy Court in the Chapter 11 Case shall be reasonably satisfactory in form and substance to the Administrative Agent, and all adequate protection payments and critical vendor payments approved by the Bankruptcy Court in the Interim DIP Order or otherwise shall be reasonably satisfactory to the Administrative Agent.
(i) Other Orders. All orders (if any) providing for payment of Prepetition indebtedness of the Loan Parties or affecting in any way the Obligations or the Collateral submitted for entry in the Chapter 11 Case shall be in form and substance reasonably satisfactory to the Administrative Agent, as entered, shall not deviate from the form thereof approved by the Administrative Agent in any material respect which is materially adverse to the interests of the Lenders without the prior consent of the Administrative Agent.
(j) Sale Process. The Loan Parties shall have commenced a sale process for the proposed sale by the Loan Parties of all or substantially all of their respective assets and business segments (such proposed sale, the “Sale Transaction”).
(k) Initial Budget; Other Financial Information. The Lenders shall have received a detailed weekly budget of projected receipts and expenditures of the Loan Parties for the period commencing on the Petition Date and ending on the date that is thirteen (13) weeks after the Petition Date, in form and substance reasonably satisfactory to the Administrative Agent and consistent with the budget prepared by the Loan Parties and delivered to the Administrative Agent prior to the Closing Date (the “Initial Budget”), with such supporting detail as the Administrative Agent may reasonably request.
(l) Perfection Matters. Each UCC financing statement or other filing required by the Security Agreement shall be in proper form for filing.
(m) Anti-Money Laundering; Beneficial Ownership. The Borrower shall have provided to each Lender the documentation and other information requested by such Lender that is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, and any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
(n) Fees and Expenses. The Administrative Agent and the Lenders entitled thereto shall have received (i) the Upfront Fee, (ii) the Backstop Fee, (iii) all amounts due and payable on or prior to the Closing Date pursuant to the Fee Letter and (iv) all other reasonable accrued fees
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and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all out‑of‑pocket expenses (including fees of legal counsel to the Administrative Agent and the Lenders) required to be reimbursed or paid by the Borrower hereunder.
Without limiting the generality of the provisions of Section 8.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding.
Section 4.02 Each Credit Event. The obligation of each Lender to make a Loan on the occasion of any Borrowing (other than a continuation or conversion of an existing Borrowing) and the obligation of the Issuing Bank to issue, extend the expiry date of, or increase the amount of, any Letter of Credit is subject to the satisfaction of the following conditions:.
(a) The representations and warranties of each Loan Party set forth in this Agreement shall be true and correct in all material respects (except to the extent that any such representation and warranty is qualified by materiality or Material Adverse Effect, in which case such representation and warranty shall be true and correct in all respects) on and as of the date of such extension of credit, except to the extent that any such representation and warranty relates to an earlier date (in which case such representation and warranty shall have been true and correct in all material respects (except to the extent that any such representation and warranty is qualified by materiality or Material Adverse Effect, in which case such representation and warranty shall be true and correct in all respects) as of such earlier date).
(b) At the time of and immediately after giving effect to such extension of credit, no Default or Event of Default shall have occurred and be continuing.
(c) The Administrative Agent or the Issuing Bank shall have received a Committed Loan Notice in accordance with Section 2.03 or a Letter of Credit request in accordance with Section 2.17(b), as applicable.
(d) At the time of such extension of credit, and also after giving effect thereto, (i) if such extension of credit has been requested before the Final DIP Order has been entered by the Bankruptcy Court, the Interim DIP Order shall be in full force and effect and shall not have been vacated, reversed, stayed, modified or amended in any respect other than immaterial modifications made with the prior written consent of the Administrative Agent (such consent not to be unreasonably withheld), and (ii) if such extension of credit is requested after the Final DIP Order (which, for purposes of this Section 4.02(d), shall be defined without regard to whether or not the time to appeal, petition for certiorari, or move for re-argument or rehearing has expired) has been entered by the Bankruptcy Court, the Final DIP Order shall be in full force and effect and shall not have been vacated, reversed, stayed, modified or amended in any respect other than immaterial modifications made with the prior written consent of the Administrative Agent (such consent not to be unreasonably withheld). If either the Interim DIP Order or the Final DIP Order is the subject of a pending appeal in any respect, none of such Order, the making of the Loans, the issuance of the Letters of Credit or the performance by any Loan Party of any of its obligations under any of the Loan Documents shall be the subject of a presently effective stay pending appeal. The Loan Parties, the Administrative Agent and the Lenders shall be permitted and required to
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perform their respective obligations in compliance with this Agreement, notwithstanding any such objection or appeal unless the relevant Order has been stayed by a court of competent jurisdiction.
Each such request for an extension of credit shall be deemed to constitute a representation and warranty by the Borrower or other applicable Loan Party on the date thereof as to the matters specified in paragraphs (a) and (b) of this Section.
| ARTICLE V |
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| Affirmative Covenants |
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Until the Facility Termination Date, the Borrower covenants and agrees with the Lenders that:
Section 5.01 Section 5.01 Financial and Other Information . The Borrower will furnish to the Administrative Agent for delivery to each Lender:
(a) [reserved];
(b) [reserved];
(c) [reserved];
(d) [reserved];
(e) [reserved];
(f) on or before 5:00 pm on the twenty-first (21st) day of each calendar month, consolidating balance sheets of the Borrower and its Subsidiaries as at the last day of such month, and the related consolidating statements of income or operations, for such month and for the portion of the Borrower’s fiscal year then ended, in each case setting forth in comparative form, as applicable, such figures for the corresponding calendar month of the previous fiscal year and the corresponding portion of the previous fiscal year, together with accounts receivable and accounts payable aging reports, all in reasonable detail, such consolidating statements to be certified by a Responsible Officer of the Borrower as fairly presenting the financial condition and results of operations of the Borrower and its Subsidiaries;
(g) on or before 5:00 p.m. on the first (1st) Business Day of each week, (i) a report showing Liquidity as of the last Business Day of the calendar week most recently ended, together with any supporting information reasonably required by the Administrative Agent and (ii) a report demonstrating compliance or non-compliance with the financial maintenance covenant set forth in Section 6.10(a) for the calendar week most recently ended as of such date, in each case, in form and detail reasonably acceptable to the Administrative Agent;
(h) on or before 5:00 p.m. on the fourth (4th) Business Day of every week, commencing with the first full week following the Petition Date, a cash flow reconciliation and variance report in form and detail reasonably acceptable to the Administrative Agent (i) showing comparisons of actual results for each line item against such line item in the Budget for the prior periods ended and (ii) demonstrating compliance or non-compliance with the financial maintenance covenants set forth in Section 6.10(b) (each, a “Variance Report”);
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(i) on or before 5:00 p.m. on the last Business Day of every fourth (4th) week, commencing with the fourth full week following the Petition Date, an updated detailed weekly budget of projected receipts and expenditures of the Loan Parties for the thirteen-week period following such delivery date, which updated weekly budget shall be in form of, and contain the detail set forth in, the Budget and shall include any supporting information reasonably requested by the Administrative Agent; provided that not more than once every four (4) weeks, the Borrower may seek the approval of the Administrative Agent to replace the Budget (as in effect immediately prior to giving effect to any such replacement) with the updated budget most recently delivered pursuant to this Section 5.01(i), which approval shall be made in writing (which may be provided by email) at the reasonable discretion of the Administrative Agent (provided that if any Lender shall object to any such replacement, approval of such replacement shall be at the reasonable discretion of the Required Lenders; provided further, that the Administrative Agent and the Lenders shall be deemed to have approved of any such updated budget unless the Administrative Agent or any Lender, as applicable, shall have objected thereto by written notice to the Borrower within five (5) Business Days after receipt thereof), and if the Administrative Agent (or the Required Lenders, as applicable) so approves such replacement, then such updated budget (the “Updated Budget”) shall become the “Budget” for purposes of this Agreement; provided further, to the extent that either the Administrative Agent or any Lender does provide such objection notice within such five (5) Business Day period, the then-existing Budget shall constitute the Budget for the projection period, without giving effect to any update, modification or supplement (with appropriate adjustments for the timing of monthly or semi-monthly disbursements), until such time as an Updated Budget is approved by the Administrative Agent (or the Required Lenders, as applicable), in its (or their) reasonable discretion);
(j) within forty-five (45) days of the Petition Date, an analysis of accelerated cost takeout and improved operational efficiency by business segment (including both success/progress to date and go forward timelines), in form and detail reasonably acceptable to the Administrative Agent and its financial advisor;
(k) promptly after the same have been produced, copies of any document and information that is required to be delivered to the Prepetition Agent under the Prepetition Credit Agreement or the Prepetition Trustee under the Prepetition Secured Notes Indenture;
(l) as soon as reasonably practicable in advance of filing with the Bankruptcy Court: (i) the motions seeking approval of the DIP Facility and use of cash management arrangements and proposed forms of the Interim DIP Order, Final DIP Order and Cash Management Order, which motions shall be in form and substance reasonably satisfactory to the Administrative Agent; (ii) as applicable, any motions seeking approval of bidding procedures and any 363 sale, and the proposed forms of orders related thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent; (iii) any such proposed orders and pleadings relating to the Loan Documents, which orders and pleadings shall be in form and substance reasonably satisfactory to the Administrative Agent; (iv) as applicable, any Plan and/or any disclosure statement relating to such Plan (which Plan or disclosure statement shall comply with the requirements set forth in this Agreement); (v) any motion and proposed form of order seeking to extend or otherwise modify the Loan Parties’ exclusive periods set forth in section 1121 of the Bankruptcy Code (so long as the Administrative Agent has confirmed in writing that the Administrative Agent and the Lenders will not object to such order); and (vi) any motion and proposed form of order filed with the Bankruptcy Court relating to any management equity plan, incentive, retention or severance plan, the assumption, rejection, modification or amendment of any material contract;
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(m) promptly upon providing such information or documents to the Unsecured Creditors Committee, copies of all financial information and other documents provided by or on behalf of the Loan Parties to the Unsecured Creditors Committee in the Chapter 11 Case;
(n) promptly following the Administrative Agent’s reasonable request therefor (on its own behalf or at the request of any Lender), an update on the sale process with respect to the Sale Transaction;
(o) promptly following any reasonable request therefor, such other information regarding the operations, business affairs and financial position of the Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent (on its own behalf or at the request of any Lender) may reasonably request, in form and detail reasonably satisfactory to the Administrative Agent;
(p) promptly following any request therefor, information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act; and
(q) to the extent any Loan Party qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, an updated Beneficial Ownership Certification promptly following any change in the information provided in the Beneficial Ownership Certification delivered to any Lender in relation to such Loan Party that would result in a change to the list of beneficial owners identified in such certification.
Information required to be delivered pursuant to this Section 5.01 shall be deemed to have been delivered if such information, or one or more annual or quarterly reports containing such information, shall (a) have been posted by the Administrative Agent on IntraLinks or a similar site to which the Lenders have been granted access or (b) shall be available on the website of the SEC at http://www.sec.gov; provided that the Borrower shall notify the Administrative Agent of the posting of such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Information required to be delivered pursuant to this Section 5.01 may also be delivered by electronic communications pursuant to procedures approved by the Administrative Agent.
Section 5.02 Section 5.02 Notices of Material Events. The Borrower will furnish to the Administrative Agent for delivery to each Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against the Borrower or any Subsidiary thereof as to which there is a reasonable likelihood of an adverse determination that would reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, would reasonably be expected to result in liability of the Borrower or its Subsidiaries in an amount which would constitute a Material Adverse Effect; and
(d) any other development, upon any Responsible Officer obtaining knowledge of the occurrence of such development, that has resulted in, or would reasonably be expected to result in, a Material Adverse Effect.
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Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer or other executive officer of the Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.
Section 5.03 Section 5.03 Existence; Conduct of Business . The Borrower will, and will cause each of its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges and franchises material to the conduct of its business except in each case (i) other than, in the case of the legal existence of the Borrower, where the failure to do so would not reasonably be expected to result in a Material Adverse Effect or (ii) as such action is not prohibited under Sections 6.03, 6.04 or 6.05.
Section 5.04 Section 5.04 Payment of Obligations. Except as prohibited by the Bankruptcy Code, the Borrower will, and will cause each of its Subsidiaries to, pay its material obligations, including material Tax liabilities, before the same shall become delinquent or in default, except where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings, (b) the Borrower or such Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP and (c) the failure to make payment pending such contest would not reasonably be expected to, individually or in the aggregate, result in a Material Adverse Effect. For the avoidance of doubt, nothing herein shall permit payment of any obligation subject to the automatic stay under the Bankruptcy Code;providedthat such obligations may be paid as required in or permitted by (i)the Orders or (ii)any other order of the Bankruptcy Court (to the extent such other order is reasonably acceptable to the Administrative Agent)..
Section 5.05 Section 5.05 Maintenance of Properties; Insurance. The Borrower will, and will cause each of its Subsidiaries to (in the case of each of clauses (a)and(b), subject to the Interim DIP Order and the Final DIP Order):
(a) Keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted.
(b) Use commercially reasonable efforts to maintain, prosecute and enforce its material Intellectual Property, in each case except where the failure to do so would not reasonably be expected to result in a Material Adverse Effect.
(c) Maintain, with financially sound and reputable insurance companies, or in accordance with acceptable self-insurance policies, insurance (subject to customary deductibles and retentions) in such amounts and against such risks as are customarily maintained by similarly situated companies engaged in the same or similar business as reasonably determined by the Borrower and, within the timeframe required by Section 5.12, cause the Administrative Agent to be listed as a loss payee and mortgagee, on property policy with respect to tangible personal property and assets constituting Collateral and as an additional insured on all liability policies. Notwithstanding the foregoing, Borrower and the subsidiaries may (i) maintain all such insurance with any combination of primary and excess insurance, and (ii) maintain any or all such insurance pursuant to master or so-called “blanket policies” insuring any or all Collateral and/or other Real Property which does not constitute Collateral (and in such event the loss payee endorsement shall be limited or otherwise modified accordingly).
(d) At the time of delivery of the applicable Mortgage (or such later date as may be agreed to by the Administrative Agent in its sole discretion), subject to Section 5.12, cause such property insurance policy with respect to the Mortgaged Property located in the United States of America to be endorsed or otherwise amended to include a “standard” lender’s loss payable endorsement, in form and substance reasonably satisfactory to the Administrative Agent; deliver a
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certificate of insurance with respect to each Mortgaged Property to the Administrative Agent; deliver to the Administrative Agent, prior to or concurrently with the cancellation or nonrenewal of any such policy of insurance covered by this clause (d), a copy of a renewal or replacement (or other evidence of renewal of a policy previously delivered to the Administrative Agent) insurance certificate with respect thereto;
(e) At least five (5) days prior to the time of delivery of the applicable Mortgage, if any portion of any Mortgaged Property located in the United States is at any time located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a special flood hazard area (each a “Special Flood Hazard Area”) with respect to which flood insurance has been made available under the Flood Insurance Laws (as now or hereafter in effect or successor act thereto), (i) maintain, or cause to be maintained, with a financially sound and reputable insurer, flood insurance in an amount and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws and (ii) deliver to the Administrative Agent evidence of such compliance in form and substance reasonably acceptable to the Administrative Agent.
In connection with the covenants set forth in this Section 5.05, it is understood and agreed that:
(i) the Administrative Agent, the Lenders, the Issuing Bank and their respective agents or employees shall not be liable for any loss or damage insured by the insurance policies required to be maintained under this Section 5.05, it being understood that (A) the Loan Parties shall look solely to their insurance companies or any other parties other than the aforesaid parties for the recovery of such loss or damage and (B) such insurance companies shall have no rights of subrogation against the Administrative Agent, the Lenders, the Issuing Bank or their agents or employees. If, however, the insurance policies, as a matter of the internal policy of such insurer, do not provide waiver of subrogation rights against such parties, as required above, then the Borrower, on behalf of itself and behalf of each of the subsidiaries, hereby agree, to the extent permitted by law, to waive, and further agree to cause each of the subsidiaries to waive, its right of recovery, if any, against the Administrative Agent, the Lenders, the Issuing Bank and their agents and employees; and
(ii) the designation of any form, type or amount of insurance coverage by the Administrative Agent (including acting in the capacity as the Administrative Agent) under this Section 5.05 shall in no event be deemed a representation, warranty or advice by the Administrative Agent or the Lenders that such insurance is adequate for the purposes of the business of Borrower and the subsidiaries or the protection of their properties.
Section 5.06 Section 5.06 Books and Records; Inspection Rights; Conference Calls; Field Examinations.
(a) The Borrower will, and will cause each of its Subsidiaries to, keep proper books of record and account in which full, true and correct entries in all material respects are made of all dealings and transactions in relation to its business and activities.
(b) The Borrower will, and will cause each of its Subsidiaries to, upon reasonable notice from the Administrative Agent, permit any representatives, independent contractors, financial advisors and agents designated by the Administrative Agent or any Lender to visit and inspect its properties, upon reasonable notice to examine and make extracts from its books and records, and to discuss its affairs, finances and condition with its officers and independent accountants and to monitor the Collateral, all at the expense of the Borrower and at such reasonable times during normal business hours and
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as often as reasonably requested, provided that such visits, inspections, examinations and discussions shall be subject to public health and safety limitations required by applicable Requirements of Law; provided further, that the Administrative Agent shall have delivered a written notice of such inspection to the Borrower prior to the date of any such inspection; provided further, that any Lender may request that the Administrative Agent exercise its rights to conduct such visits, inspections, examinations and discussions; provided, further, that no Lender nor any of its representatives, independent contractors, financial advisors or agents may exercise the rights contemplated in this clause (b) unless accompanying the Administrative Agent or any of its representatives, independent contractors, financial advisors or agents.
(c) The Borrower will cause appropriate members of the Loan Parties’ management and other professionals engaged by the Loan Parties (including, without limitation, the Investment Banker) to be available to discuss (in person or telephonically) the Budget, the information delivered pursuant to Section 5.01(n) and such other information relating to the Chapter 11 Case and the financial results and condition of the Loan Parties and their Subsidiaries, from time to time as and when reasonably requested by the Administrative Agent.
(d) The Borrower shall engage a party or parties reasonably acceptable to the Administrative Agent to conduct a field examination of the Loan Parties’ assets as soon as reasonably practicable after the Closing Date with such examiner’s or examiners’ reports to be shared with the Administrative Agent (for distribution to the Lenders) upon receipt.
(e) For the avoidance of doubt, the information provided to the Lenders pursuant to this Section 5.06 shall be subject to the provisions of Section 9.13.
Section 5.07 Section 5.07 Compliance with Laws. Except where failure or non-compliance is permitted by the Bankruptcy Code, the Borrower will, and will cause each of its Subsidiaries to, comply with all applicable laws, rules, regulations and orders of any Governmental Authority applicable to it or its property, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
Section 5.08 Section 5.08 Use of Proceeds and Extensions of Credit. The Borrower shall, and shall cause each of its Subsidiaries to, (a)use the proceeds of the Loans, subject to the Interim DIP Order and the Final DIP Order, only for the following purposes: (i) for working capital and other general corporate purposes of the Loan Parties, including the payment of professional fees and expenses; (ii) to pay thereasonable fees and expenses of theAdministrative Agent, the Lenders and the Issuing Bank (including the reasonable fees and expenses of counsel and financial advisors) to the extent required hereunder; (iii) to pay claims in respect of certain Prepetition creditors, which may include, without limitation, employees, taxing authorities and trade vendors in the ordinary course, in each case to the extent authorized by orders of the Bankruptcy Court reasonably acceptable to the Administrative Agent; (iv) after entry of the Interim DIP Order or Final DIP Order, and to the extent authorized by the Bankruptcy Court, to repay Prepetition Priority Payment Obligations; and (v) to make adequate protection payments to the Prepetition Agent, the Prepetition Lenders, the Prepetition Issuing Banks the Prepetition Secured Notes Trustee, the Prepetition SecuredNoteholders, the other holders of the Prepetition Facility Obligations and the other holders of the Prepetition Secured Notes Obligations, in each case to the extent authorized by orders of the Bankruptcy Court and in accordance with the Budget (subject to the variances therefrom permitted underSection 6.10(b) ); and (b)use the issuance of Letters of Credit solely to replace, or provide renewals of, the Prepetition Letters of Credit or, subject to the New LCSublimit, to issue New Letters of Credit; provided that in no event shall the proceeds of any Loan or any Letter of Credit be used (x) in contravention of any Law or of any Loan Documents; (y)for the payment of professional fees, costs and disbursements incurred in connection with (1)any challenge to (A) the amount, extent, priority, validity, perfection or enforcement of the indebtedness of the Loan Parties owing to the Administrative Agent, the Lenders, the
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Issuing Bank, the Prepetition Agent, the Prepetition Issuing Banks, the other holders of the Obligations or the other holders of the Prepetition Priority Payment Obligations or (B)the collateral securing such indebtedness or the perfection, priority or validity of the Liens granted in favor of the Administrative Agent, the Lenders, the Issuing Bank, the Prepetition Agent, the Prepetition Issuing Banks, the other holders of the Obligations or the other holders of the Prepetition Priority Payment Obligations with respect thereto or (2)any action to limit, impede or restrict the Administrative Agent’s enforcement of remedies with respect to the Collateral securing the Obligations following an Event of Default or to otherwise modify or limit the rights of Administrative Agent, the Lenders, the Issuing Bank, the Prepetition Administrative Agent or the holders of the Prepetition Priority Payment Obligations, in each case under any Order; provided, notwithstandinganything to the contrary herein,no more than an aggregate of $50,000 (or such higher amount as may be specified in the Final DIP Order) of the Carve-Out may be used to investigate the matters in the foregoing clause (1).
No proceeds of any Loan or any Letter of Credit will be used, directly or indirectly, or contributed or otherwise made available to any Subsidiary or other Person, to fund any activities of or business with any individual or entity, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other manner that will result in a violation by an party to this Agreement or any of its Related Parties (including any individual or entity participating in the transaction, whether as Lender, Administrative Agent, Issuing Bank, or otherwise) of Sanctions.
(a) Subject to Section 5.12(c), on the Closing Date each Domestic Subsidiary (other than an Excluded Subsidiary) will become a party to the Guarantee Agreement.
(b) With respect to any Person that becomes a Domestic Subsidiary (other than an Excluded Subsidiary) after the Closing Date, or any Excluded Subsidiary that ceases to constitute an Excluded Subsidiary after the Closing Date, the Borrower will, within 30 days thereafter (or such longer period as the Administrative Agent may agree in its sole discretion) (i) cause such Subsidiary to become a party to the Guarantee Agreement, (ii) become a party to the Security Agreement or such other Collateral Document as may be reasonably requested by the Administrative Agent (iii) except as otherwise contemplated in this Agreement or the Collateral Documents, execute and deliver all such other documents and instruments and take such actions to create and perfect the security interests required by the Collateral Documents and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent, in addition to items of the type described in Section 4.01(c) with respect to such subsidiary in form and substance reasonably satisfactory to the Administrative Agent, a customary legal opinion relating to authority of each such Subsidiary to become a party to the Guarantee Agreement and the Security Agreement that is organized under the laws of New York or Delaware, which shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
(c) Unless otherwise waived by the Administrative Agent or the applicable Lender (solely with respect to clause (i)(B) below), with respect to each Mortgaged Property, the Borrower shall cause the following requirements to be satisfied with respect to such Real Property on or prior to the date on which such Real Property is required hereunder to be encumbered by a Mortgage:
(i) (A) the Administrative Agent shall have received with respect to each Mortgaged Property located in the United States of America or any State thereof, the Flood Documentation and (B) each Lender shall have received (through the Administrative Agent) any other reasonable documents or information reasonably requested by such Lender (through the Administrative Agent) to enable such Lender to comply, in the determination of the Administrative Agent, with
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any applicable Flood Insurance Laws and all applicable rules and regulations promulgated pursuant thereto; and
(ii) the Administrative Agent shall have received such other documents as the Administrative Agent may reasonably request that are available to the Borrower or any Subsidiary Guarantor without material expense with respect to any such Mortgage or Mortgaged Property.
Section 5.10Section 5.10 Further Assurances. Promptly upon the reasonable request by the Administrative Agent, or any Lender through the Administrative Agent, the Borrower shall, shall cause the Subsidiary Guarantors to (a) correct any material defect or error that may be discovered in the execution, acknowledgment, filing or recordation of any Loan Document, and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably require from time to time in order to (i) carry out the purposes of the Loan Documents, (ii) to the fullest extent permitted by applicable law, subject any Loan Party’s assets, including Equity Interests to the Liens granted by the Security Agreement and the other Collateral Documents to the extent required thereunder and (iii)except as otherwise contemplated by the Collateral Documents, perfect and maintain the validity, effectiveness and priority of the Collateral Documents and any of the Liens created thereunder.
Section 5.11Section 5.11 [Reserved] .
(a) Within 30 days following the Closing Date (or such longer period as may be agreed to by the Administrative Agent in its reasonable discretion), the Borrower shall deliver insurance certificates and endorsements contemplated by Section 5.05(c), in form and substance reasonably satisfactory to the Administrative Agent.
(b) Within 30 days following the Closing Date (or such longer period as may be agreed to by the Administrative Agent in its reasonable discretion), each applicable Loan Party shall deliver to the Administrative Agent executed versions of Intellectual Property Security Agreements, appropriate for filings with the USPTO and USCO, as applicable, with schedules thereto identifying any Intellectual Property owned by such Loan Party registered with, or subject to a pending published application before, the USPTO or USCO.
(c) Within 30 days following the Closing Date (or such longer period as may be agreed by the Administrative Agent in its reasonable discretion), the Borrower shall cause each Material Domestic Subsidiary that is not a Subsidiary Guarantor as of the Closing Date and is not an Excluded Subsidiary to (i) become a party to the Guarantee Agreement, (ii) become a party to the Security Agreement or such other Collateral Document as may be reasonably requested by the Administrative Agent (iii) except as otherwise contemplated in this Agreement or the Collateral Documents, execute and deliver all such other documents and instruments and take such actions to create and perfect the security interests required by the Collateral Documents and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent, in addition to items of the type described in Section 4.01(c) with respect to such subsidiary in form and substance reasonably satisfactory to the Administrative Agent, a customary legal opinion relating to authority of each such Subsidiary to become a party to the Guarantee Agreement and the Security Agreement that is organized under the laws of New York or Delaware, which shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
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Section 5.13
Section 5.13 Investment Banker. The Borrower will, and will cause each other Loan Party to: (a)continue to retain the Investment Banker with the terms of such engagement satisfactory to the Administrative Agent;(b) file with the Bankruptcy Court an application seeking authority to retainthe Investment Bankernuncprotunc to the Petition Dateon, or as soon as reasonably practicable after, the Petition Date; and (c)obtain Bankruptcy Court approval of the retention of the Investment Banker in accordance with subsections (a) and (b)above, no later than thirty(30) days after the Petition Date(or such later date as the “second day” hearing occurs in the Chapter 11 Case), which date may be extended by the Administrative Agent in its reasonable discretion.
Section 5.14 Section 5.14 Postpetition Obligations. Except as otherwise permitted by the Bankruptcy Code,the Borrower will, and will cause each other Loan Party to, perform and comply in all material respects with the Interim DIP Order and the Final DIP Order, in each case, after giving effect to any applicable grace period in the Interim DIP Order or Final DIP Order, as applicable.
Section 5.15 Section 5.15 Plan and Sale Milestones. The Borrower will, and will cause each other Loan Party, to either:
(a) Plan Milestones: Within seventy-five (75) calendar days of the Petition Date, enter into a restructuring support agreement with a number of Prepetition Term Lenders and Prepetition Secured Noteholders, in each case, sufficient to cause acceptance of their respective classes of claims, which agreement secures support by such creditors for a Plan of Reorganization that would provide for, among other things, the occurrence of the Facility Termination Date and the payment in full in cash of all Prepetition Priority Payment Obligations (unless holders of more than fifty percent (50%) of all Revolving Commitments held by holders of Prepetition Priority Payment Obligations agree (such agreement not to be unreasonably withheld) to some other treatment for the Prepetition Priority Payment Obligations), in each case upon the effective date of such Plan of Reorganization, with the effective date thereunder being a date that is not later than the date that is nine (9) months after the Petition Date (any such Plan of Reorganization, a “Conforming Plan of Reorganization”); provided that notwithstanding the foregoing or anything to the contrary in this Agreement or any other Loan Document, the Administrative Agent may in its reasonable discretion extend the deadline set forth in this clause (a) to a date not later than fifteen (15) days following such deadline as in effect on the Closing Date; or
(b) Sale Milestones: (i) within thirty (30) calendar days of the Petition Date, prepare customary M&A marketing materials with respect to the Sale Transaction for distribution to potential purchasers and (ii) within seventy (70) days after the Petition Date, (A) deliver to the Administrative Agent and the Lenders indications of interest in respect of the Sale Transaction for sales in amounts, in the aggregate, sufficient to pay the Obligations and the Prepetition Priority Payment Obligations in full (any such Sale Transaction, a “Conforming Asset Sale”) and (B) file with the Bankruptcy Court a motion seeking approval of bidding procedures and setting a date for an auction with respect to the Sale Transaction within one hundred twenty (120) calendar days of the Petition Date (or such later date as agreed by the holders of more than fifty percent (50%) of all Revolving Commitments held by holders of Prepetition Priority Payment Obligations in their reasonable discretion); provided that notwithstanding the foregoing or anything to the contrary in this Agreement or any other Loan Document, the Administrative Agent may in its reasonable discretion extend any deadline set forth in this clause (b) to a date not later than, in the case of any such deadline, fifteen (15) days following the applicable deadline as in effect on the Closing Date.
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| ARTICLE VI |
|
| Negative Covenants |
Until the Facility Termination Date, the Borrower covenants and agrees with the Lenders that:
Section 6.01 Indebtedness. The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness incurred under the Loan Documents;
(b) (i) Indebtedness incurred under the Prepetition Loan Documents and (ii) Indebtedness in respect of the Prepetition Secured Notes;
(c) Indebtedness of the Borrower or any other subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets, provided that (A) such Indebtedness is incurred or assumed prior to or within 180 days after such acquisition or the completion of such construction or improvement, (B) the principal amount of such Indebtedness does not exceed the cost of acquiring, constructing or improving such fixed or capital assets and (C) the aggregate amount of such Indebtedness any time outstanding shall not exceed $1,000,000;
(d) Indebtedness of Non-Loan Parties in an aggregate principal amount at any time outstanding not to exceed $1,000,000;
(e) Guarantees of any Indebtedness permitted pursuant to this Section 6.01 (provided that, in the case of any such Guarantee of Indebtedness of a Loan Party by a Non-Loan Party, such Guarantee is permitted under Section 6.11);
(f) Indebtedness of the Borrower owed to any Subsidiary or of a Subsidiary owed to any other Subsidiary or the Borrower; provided, however, that (i) any Indebtedness owing by a Loan Party to a Non-Loan Party pursuant to this clause (f) shall be subordinated in right of payment to the Obligations, (ii) upon any such Indebtedness being owed to any Person other than the Borrower or a Subsidiary, the Borrower or such Subsidiary, as applicable, shall be deemed to have incurred Indebtedness not permitted by this clause (f) and (iii) the extension of any such Indebtedness is permitted under Section 6.11;
(g) Indebtedness outstanding on the Closing Date and set forth on Schedule 6.01;
(h) [reserved];
(i) [reserved];
(j) Indebtedness in respect of bid, performance, surety or completion bonds issued for the account of the Borrower or any Subsidiary in the ordinary course of business, including guarantees or obligations of the Borrower or any Subsidiary with respect to letters of credit supporting such bid, performance, surety or completion obligations;
(k) [reserved];
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(l) indemnification and adjustment of purchase price provisions, in each case, incurred or assumed in connection with asset sales;
(m) obligations of the Borrower or any of its Subsidiaries to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 90 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money ;
(n) letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business;
(o) Indebtedness arising (A) from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence or (B) under any customary cash pooling or cash management agreement (including any Cash Management Agreement) with a bank or other financial institution in the ordinary course of business;
(p) Indebtedness representing deferred compensation incurred in the ordinary course of business;
(q) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;
(r) [reserved];
(s) Indebtedness supported by a Letter of Credit in a principal amount not in excess of the stated amount of such Letter of Credit;
(t) [reserved];
(u) [reserved];
(v) [reserved];
(w) [reserved];
(x) other unsecured Indebtedness of the Borrower and its Subsidiaries in an aggregate principal amount not to exceed $2,500,000 at any time outstanding;
(y) to the extent constituting Indebtedness, the Carve-Out; and
(z) to the extent constituting Indebtedness, any adequate protection provided to the Administrative Agent, the Lenders, the Issuing Bank, the Cash Management Banks, the Prepetition Agent, the Prepetition Lenders, the Prepetition Issuing Banks, the Prepetition Secured Notes Trustee and the Prepetition Secured Noteholders under the Orders, as may be amended pursuant to the terms of this Agreement.
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Section 6.02 Liens. The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights in respect of any thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any Subsidiary (or any improvements or accession thereto or proceeds therefrom) existing on the Petition Date and set forth in Schedule 6.02; provided that (i) such Lien shall not apply to any other property or asset of the Borrower or any Subsidiary and (ii) such Lien shall secure only those obligations which it secures on the Closing Date;
(c) [reserved];
(d) Liens securing Indebtedness of the Borrower or any Subsidiary incurred pursuant to Section 6.01(c); provided that (i) such Liens are incurred prior to or within 180 days after such acquisition or the completion of such construction and improvement with the acquisition of such fixed or capital assets, and (ii) such Liens do not at any time encumber any of its existing property other than the property financed by such Indebtedness;
(e) Liens created by the Collateral Documents securing the Obligations;
(f) Liens on the Collateral securing Indebtedness incurred pursuant to Sections 6.01(b);
(g) [reserved];
(h) [reserved];
(i) licenses, sublicenses, leases or subleases granted to others in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any Subsidiary;
(j) any interest or title of a lessor or sublessor under, and Liens arising from UCC financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to, leases and subleases permitted hereunder;
(k) normal and customary rights of setoff upon deposits of cash or other Liens originating in the ordinary course of business solely by virtue of any contractual, statutory or common law provision relating to bankers liens, rights of setoff or similar rights in favor of banks (including any Cash Management Bank) or other depository institutions (including funds or other assets credited thereto and pooling and netting arrangements) and not securing any Indebtedness (other than Indebtedness permitted by Section 6.01(o));
(l) Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(m) [reserved];
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(n) Liens on assets of Non-Loan Parties securing Indebtedness permitted pursuant to Sections 6.01(d);
(o) any extension, renewal or replacement (or successive renewals or replacements) in whole or in part of any Lien referred to in clause (b), (d) and (l) above; provided that with respect to clause (b), and (d) above, (x) the obligations secured thereby shall be limited to the obligations secured by the Lien so extended, renewed or replaced (and, to the extent provided in such clauses, extensions, renewals and replacements thereof) and (y) such Lien shall be limited to all or a part of the assets that secured the Lien so extended, renewed or replaced;
(p) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods and Liens in the ordinary course of business in favor of issuers of performance and surety bonds or bid bonds or with respect to health, safety and environmental regulations (other than for borrowed money) or letters of credit or bank guarantees issued to support such bonds or requirements pursuant to the request of and for the account of such Person in the ordinary course of business;
(q) Liens (i) on assets of a Loan Party in favor of a Loan Party or (ii) on assets of a Non-Loan Party in favor of the Borrower or any of its Subsidiaries;
(r) [reserved];
(s) [reserved];
(t) [reserved];
(u) Liens arising by operation of law in the ordinary course of business;
(v) Liens on property or assets under construction (and related rights) in favor of a contractor or developer or arising from progress or partial payments by a third party relating to such property or assets;
(w) Liens arising under any retention of title, hire, purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to the Borrower and its Subsidiaries in the ordinary course of trading and on the supplier’s standard or usual terms;
(x) [reserved];
(y) Liens on deposits made with utilities pursuant to any order of the Bankruptcy Court, in an aggregate amount not to exceed $3,500,000;
(z) Liens junior to the Liens created pursuant to the Loan Documents to secure the Obligations that are granted by the Interim DIP Order or the Final DIP Order pursuant to Section 364(d)(1) of the Bankruptcy Code as adequate protection; and
(aa) Liens pursuant to the Carve-Out.
Section 6.03 Fundamental Changes. The Borrower will not, and will not permit any Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now.
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owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing:
(a) any Person may merge or be consolidated with or into the Borrower in a transaction in which the Borrower is the continuing or surviving Person;
(b) any Person (other than the Borrower) may merge or consolidate with or into any Subsidiary in a transaction in which the surviving entity is or becomes a Subsidiary; provided that, if such Person is a Subsidiary Guarantor, the surviving entity is the Borrower or a Domestic Subsidiary that is or substantially concurrently becomes a Subsidiary Guarantor; and
(c) any merger, consolidation, Disposition, liquidation or dissolution not prohibited by Section 6.04 shall be permitted.
Section 6.04 Section 6.04 Disposition of Property . The Borrower will not, and will not permit any Subsidiary to, directly or indirectly, consummate any Asset Sale, except to the extent consented to by the Administrative Agent and the Required Lenders in their reasonable discretion.
Section 6.05 Section 6.05 Restricted Payments. The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, directly or indirectly, any Restricted Payment, except any Wholly Owned Subsidiary may declare or make a Restricted Payment with respect to the Equity Interests of such Subsidiary to the Borrower or any other Subsidiary.:
Section 6.06 Section 6.06 Transactions with Affiliates and Shareholders. The Borrower will not, and will not permit any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates or shareholders involving payment or consideration in excess of $250,000, except:
(a) for transactions entered into in the ordinary course of business at prices and on terms and conditions not less favorable to the Borrower or such Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties, as reasonably determined by the Borrower;
(b) (i) transactions between or among the Loan Parties not involving any other Affiliate and (ii) Investments permitted under Section 6.11(d) in Non-Loan Parties that are Wholly Owned Subsidiaries and that are solvent;
(c) pursuant to reasonable director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, and stock compensation plans) and normal and reasonable indemnification arrangements and performance of such arrangements;
(d) any Restricted Payment permitted by Section 6.05;
(e) [reserved];
(f) [reserved];
(g) [reserved];
(h) [reserved];
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(i) any employment agreements entered into by the Borrower or any of its Subsidiaries in the ordinary course of business and the transactions pursuant thereto;
(j) [reserved];
(k) those transactions set forth on Schedule 6.06.
Section 6.07 Changes in Fiscal Periods. The Borrower will not, and will not permit any of its Subsidiaries to, change its fiscal year to end on a day other than December 31 or change its method of determining fiscal quarters without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld) and, in any event, no more than one (1) time while this Agreement is in effect.
Section 6.08 Sales and Leasebacks. The Borrower will not, and will not permit any of its Subsidiaries to, enter into any arrangement with any Person (other than the Borrower or a Subsidiary) providing for the leasing by the Borrower or any Subsidiary of real or personal property that has been or is to be sold or transferred by the Borrower or any Subsidiary to such Person or to any other Person to whom funds have been or are to be advanced by such Person on the security of such property or rental obligations of the Borrower or any Subsidiary.
Section 6.09 Clauses Restricting Subsidiary Distributions. The Borrower will not, and will not permit any of its Subsidiaries to, directly or indirectly, enter into or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Subsidiary to (a) pay dividends or make any other distributions on or in respect of its Equity Interests held by the Borrower or a Subsidiary, (b)make loans or advances or pay any Indebtedness or other obligation owed to the Borrower or any Subsidiary Guarantor or (c) transfer any of its assets to the Borrower or any Subsidiary Guarantor, except for such encumbrances or restrictions existing under or by reason of:.
(i) any encumbrances or restrictions existing under this Agreement and the other Loan Documents;
(ii) encumbrances or restrictions with respect to a Subsidiary imposed pursuant to an agreement that has been entered into in connection with the Disposition of all or substantially all of the capital stock or assets of such Subsidiary;
(iii) encumbrances or restrictions under any agreement governing Capital Lease Obligations secured by Liens permitted by Section 6.02, so long as such restrictions apply only to the assets subject to such Liens or relating to such Capital Lease Obligations, as the case may be;
(iv) [reserved];
(v) [reserved];
(vi) [reserved];
(vii) encumbrances or restrictions existing under or by reason of applicable law, regulation or order;
(viii) non-assignment provisions of any contract or lease entered into in the ordinary course of business;
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(ix) encumbrances or restrictions imposed under any agreement to sell assets, including Equity Interests of such Subsidiary, permitted under this Agreement to any Person pending the closing of such sale;
(x) encumbrances or restrictions relating to any Lien permitted under this Agreement imposed by the holder of such Lien that limit the right of the relevant obligor to transfer assets that are subject to such Lien;
(xi) encumbrances or restrictions relating to any Lien on any asset or property at the time of acquisition of such asset or property by the Borrower or any Subsidiary;
(xii) [reserved];
(xiii) encumbrances or restrictions on cash or other deposits or net worth imposed by suppliers, customers or landlords under contracts entered into in the ordinary course of business;
(xiv) with respect to clause (c) only, any encumbrance or restriction consisting of customary non-assignment provisions in leases governing leasehold interests, licenses, joint venture agreements and agreements similar to any of the foregoing to the extent such provisions restrict the transfer of the property subject to such leases, licenses, joint venture agreements or similar agreements;
(xv) with respect to clause (c) only, any encumbrance or restriction contained in security agreements or mortgages securing Indebtedness of a Subsidiary that is not a Subsidiary Guarantor to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements or mortgages;
(xvi) any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, agreements, instruments or obligations referred to in this Section 6.09; provided that, as reasonably determined by the Borrower in good faith, such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive with respect to such encumbrances and restrictions than those prior to such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings;
(xvii) (A) encumbrances or restrictions imposed by the Prepetition Credit Agreement and the other Prepetition Loan Documents and (B) encumbrances or restrictions imposed by the Prepetition Secured Notes; and
(xviii) encumbrances imposed by any applicable law as a result of any Person’s status as a “debtor” under the Bankruptcy Case or the commencement of the Chapter 11 Case.
(a) The Borrower will not permit the Liquidity as of the end of any Business Day to be less than $20,000,000; provided, that the Borrower shall be entitled to cure any non-compliance with the foregoing within two Business Days of such non-compliance, provided that Liquidity shall not be less than $15,000,000 at any time during such two Business Day period.
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(b) The Borrower will not, and will cause each of its Subsidiaries not to, permit total cash disbursements, excluding Professional Fees and fees payable to the Administrative Agent and the Lenders under this Agreement, (i) for any week, commencing with the fourth week after the Closing Date, to exceed the projected amounts in the Budget for such week by more than fifteen percent (15%), or (ii) for any three-week period, to exceed the projected amounts in the Budget for such period by more than ten percent (10%), in each case as measured on a weekly basis and reported to the Administrative Agent in each Variance Report.
Section 6.11. Investments. The Borrower will not, and will not permit any of its Subsidiaries to, make any advance, loan, extension of credit (by way of Guarantee or otherwise) or capital contribution to, or purchase any Equity Interests, bonds, notes, debentures or other debt securities of, or any assets constituting a business unit of, any other Person (all of the foregoing, “Investments”) except:
(a) extensions of trade credit and credit to customers in the ordinary course of business;
(b) Investments in cash and Cash Equivalents and Investments that were Cash Equivalents when made;
(c) [reserved];
(d) Investments made by the Borrower or any Subsidiary in the Borrower or any Subsidiary, provided that with respect to Investments by Loan Parties in Non-Loan Parties pursuant to this clause (d), (i) each such Non-Loan Party must be a Wholly Owned Subsidiary and must be solvent and (ii) the aggregate outstanding amount of all such Investments shall not exceed $1,000,000 at any time;
(e) any Investment existing on, or made pursuant to binding commitments existing on, the Closing Date and set forth on Schedule 6.11;
(f) [reserved];
(g) accounts, chattel paper and notes receivable arising from the sale or lease of goods or the performance of services in the ordinary course of business;
(h) Investments received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, suppliers and customers arising in the ordinary course of business;
(i) [reserved];
(j) Investments arising out of the receipt by the Borrower or a Subsidiary of noncash consideration for any Asset Sale permitted under Section 6.04;
(k) lease, utility and other similar deposits in the ordinary course of business; and
(l) to the extent constituting Investments, the Transactions.
(a) The Borrower will not, and will not permit any Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement or other arrangement that prohibits or restricts the ability of the Borrower or any Subsidiary to create, incur or permit to exist
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any Lien upon any of its property or assets; provided that (A) the foregoing shall not apply to prohibitions, restrictions and conditions imposed by any Requirement of Law (including the Bankruptcy Code and any other law applicable to such Person as a result of such Person’s status as a “debtor” under the Bankruptcy Code), Permitted Encumbrances, the documents governing any Indebtedness permitted to be incurred pursuant to Section 6.01(c), or by any Loan Document, any Prepetition Loan Documents or the Prepetition Secured Notes Indenture, (B) the foregoing shall not apply to prohibitions, restrictions and conditions contained in agreements relating to the disposition of any assets pending such disposition, provided such prohibitions, restrictions and conditions apply only to the assets or Subsidiary that is to be disposed of and such disposition is permitted hereunder, (C) the foregoing shall not apply to prohibitions, restrictions or conditions imposed by any agreement relating to Indebtedness permitted by this Agreement if such restrictions or conditions either (1) apply only to the property or assets securing such Indebtedness, or (2) do not restrict the granting of Liens by the Loan Parties to secure the maximum amount of the Total Revolving Commitments in effect on the Closing Date, (D) the foregoing shall not apply to customary prohibitions, restrictions or conditions in joint venture agreements and other similar agreements applicable to joint ventures permitted by Section 6.11 and applicable solely to such joint venture and entered into in the ordinary course of business, and (E) the foregoing shall not apply to customary prohibitions or restrictions in leases, subleases, licenses or asset sale agreements otherwise permitted hereby so long as such prohibitions or restrictions relate to the assets subject thereto or are customary provisions in leases and other contracts restricting the subletting or assignment thereof.
(a) The Borrower will not, and will not permit any Subsidiary to amend their organizational documents in a manner that is materially adverse to the Lenders.
(b) [Reserved].
Section 6.14 Lines of Business. The Borrower and its Subsidiaries will not engage in any material line of business other than the lines of business conducted by the Borrower and its Subsidiaries on the Closing Date and any Related Business, except for any changes (a)that result from any Asset Sale or other Disposition permitted hereunder, (b)made in connection with the Loan Parties’ long-term business plans as contemplated in the Budget or (c)that are required by the Bankruptcy Court or under the Bankruptcy Code.
Section 6.15 Bankruptcy Matters. The Borrower will not, and will not permit any of its Subsidiaries, to:
(a) at any time, seek or consent to any reversal, modification, amendment, stay or vacation of (i) any “first day order” entered by the Bankruptcy Court in the Chapter 11 Case, if such reversal, modification, amendment, stay or vacation would reasonably be expected to have an adverse effect on the rights of the Lenders under this Agreement, (ii) the Interim DIP Order or (iii) the Final DIP Order, in each case, absent the written consent of the Administrative Agent (which consent shall not be unreasonably withheld in the case of immaterial modifications to the Interim Order or the Final Order);
(b) at any time, seek or consent to a priority for any administrative expense or unsecured claim against any Loan Party (now existing or hereafter arising) of any kind or nature whatsoever, including, without limitation, any administrative expenses of the kind specified in, or arising or ordered under, Sections 105(a), 326, 328, 330, 331, 503(b), 506(c), 507, 546(c), 726, 1113 and 1114 of the Bankruptcy Code equal or superior to the priority of the Secured Parties in re-
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spect of the Obligations, other than for the Carve-Out and as otherwise expressly permitted by this Agreement or the Orders; or
(c) permit to be filed with the Bankruptcy Court any of the following unless such motion, pleading, proposed order or other document is in form and substance reasonably satisfactory to: (i) the Administrative Agent, in the case of any motion seeking approval of the DIP Facility, any cash management arrangements and procedures, any Order and the Cash Management Order; (ii) the Administrative Agent and the Required Lenders, in the case of the proposed form of the Initial DIP Order and the Final DIP Order; (iii) the Administrative Agent, in the case of any pleading or proposed order relating to the Loan Documents not addressed in the preceding clauses (i) and (ii); (iv) the Administrative Agent and the Required Lenders, in the case of any motion or proposed form of order relating to any management equity plan, incentive, retention or severance plan; or (v) the Administrative Agent and the Required Lenders, in the case of any motion and proposed form of order relating to the assumption, rejection, modification or amendment of any material contract;
(d) prior to the Facility Termination Date, pay any administrative expense claims of the Loan Parties except (i) the Obligations then due and payable hereunder, (ii) Professional Fees, or (iii) other administrative expense and professional claims in accordance with the Budget (subject to the variances therefrom permitted under Section 6.10(b)), in each case to the extent and having the order of priority set forth in the Orders.
